Ellsworth, J.
The defendant insists that at the time the debt in question is claimed to have been contracted, he had not a legal capacity to contract, because, as he claims, he was under a conservator. To prove that he was so, he offered in evidence in the court below, the record of the court of probate for the district of Plymouth, the court which made the appointment, which showed that in form a conservator was appointed by that court on the 25th day of November, 1849. The plaintiff objected to this evidence unless the defendant proved, that at the time of the appointment, he was a resident of said town and district of Plymouth, and was moreover served with notice of the proposed proceedings; insisting that without such proof it did not appear that said court of probate could entertain jurisdiction, and if there was a want of jurisdiction, that the pretended record was no record, but a narration of no importance or efficacy as evidence ; and such was the opinion of the court, but inasmuch as the record stated the necessary facts to be proved, though somewhat generally, the judge decided that he would receive the record as prima facie evidence, though not conclusive upon the jurisdictional facts, .and that the plaintiff should be allowed to prove that the defendant was not a resident of the district and had no usual place of abode therein at the time of the appointment, and that no such notice was given as the statute required. Thereupon the plaintiff offered such evidence, the defendant objecting, and the court found and adjudged that at the time of the appointment the defendant was not, and had not been for three months, a resident of the town or district of Plymouth, but of White Plains in the state of New York ; and likewise, that notice of the application for the appointment of a conservator, “ was not left at the usual place of abode of said Terry, for he had no such residence in the district,” and therefore decided that the appointment was void and created no legal incompetence in the defendant to contract a debt with the plaintiff. The admission of this evidence gives rise to the chief question discussed in the case.
On the part of the plaintiff it is said, that a court of infe[280]*280rior and limited jurisdiction (as this is claimed to be,) can not by its own finding confer on itself a jurisdiction where upon the real facts there is none ; and hence, that the defendant, not being a resident in the district, and having no notice to appear, and not appearing before the court, can not, without manifest injustice, be precluded from showing the true state of the facts. On the part of the defendant it is claimed that the decision of the court is conclusive, alike on the jurisdictional facts and the general merits of the case.
Two important questions arise in the examination of the point in dispute; 1st. Has a court of limited and inferior jurisdiction, power to determine its jurisdictional facts, to the exclusion of all collateral inquiry by a person who is affected by the judgment and who was not present; and 2d. If it has or has not this power, is the case before us one of this character 1
The reason assigned in the books for holding a judgment final and conclusive between the parties is, that the court, having full power to investigate and decide the facts, and being properly called upon in due course of law to do it, must be presumed to have fairly done it, and hence that further controversy ought not to be allowed. Of course, we suppose, if the court has not jurisdiction, the reason fails and the consequences do not follow. It is laid down as elementary law, that a court must have jurisdiction over the parties, the subject matter and the process, or its proceedings are coram nonjudice. This was said by Ch. J. Reeve, in Grumon v. Raymond, 1 Conn., 44, and by the court in Perkins v. Proctor, 2 Wils., 383, and in Martin v. Marshall, Hob., 63. It is true that every presumption is in favor of a court having general jurisdiction, while no such presumption exists in favor of a court of limited and inferior jurisdiction, or of any court not proceeding according to the common law; but even in the former case, that presumption is not always conclusive, but may be rebutted and disproved. It may be true that in the case of courts of inferior and special jurisdiction, if the record finds the jurisdictional facts, it may be prima facie evidence of the existence of those facts. In the present case the [281]*281record was received for that purpose and allowed to have so much effect as to change the burthen of proof from the defendant to the plaintiff It must not be understood from what we have said that we question the conclusive effect of the judgment of a court allowed to have jurisdiction, but only of one of a court whose jurisdiction is not admitted, and whose jurisdictional facts are open to enquiry. It is, we believe, familiar law, that if a person will avail himself of the judgment of a court of special jurisdiction, he must aver and prove the facts necessary to give that jurisdiction.
The statute which directs how a conservator shall be appointed, is in these words : “ Whenever any person' by reason of idiocy, lunacy, age, sickness, or any other cause, shall have become incapable of taking care of himself or of managing his affairs, and shall have any estate real or personal, the court of probate in the district in which such person resides, shall, on the application of the selectmen of the town where he belongs, or of any relative of such person, make due enquiry, and if it shall find that such person is incapable of taking care of himself, shall appoint some proper person to be his conservator.” The next section directs who shall sign the application, and that a summons to the respondent shall accompany it, issued by proper authority, notifying him to appear before the court, which shall be served by some proper officer leaving a true and attested copy at the usual place of abode of the respondent, at least twelve days before the time of the hearing.
It is most obvious that the probate court of the district of Plymouth could not appoint a conservator over a person who did not reside in the district, nor until notice and summons by copy had been left twelve days previously at the usual place of abode of the respondent. Now here it is found that Terry did not reside in the district, but in White Plains in the state of New York, and had so resided for three months before the appointment. His general domicil in Plymouth might perhaps have been evidence enough, (were we to pass upon the evidence,) that his residence was in Plymouth, were the finding of domicil not accompanied with [282]*282the additional exact finding, that he was notwithstanding residing in White Plains, and not in Plymouth ; and further, that no copy of the summons was left at his usual place of abode, but only at a house in Plymouth, which was not his usual place of abode and had not been for three months. "We must take the fact as we find it, correct or otherwise, and therefore we are constrained, however reluctantly, to say that Terry was not within the jurisdiction of the court, nor duly summoned and made a party to the proceedings as the law requires, and can not be concluded by this exparte proceeding.
We need not examine at length the general question whether a court that does not proceed according to the course of the common law, but exercises a restricted and special jurisdiction under some provisions of the statute law.
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Ellsworth, J.
The defendant insists that at the time the debt in question is claimed to have been contracted, he had not a legal capacity to contract, because, as he claims, he was under a conservator. To prove that he was so, he offered in evidence in the court below, the record of the court of probate for the district of Plymouth, the court which made the appointment, which showed that in form a conservator was appointed by that court on the 25th day of November, 1849. The plaintiff objected to this evidence unless the defendant proved, that at the time of the appointment, he was a resident of said town and district of Plymouth, and was moreover served with notice of the proposed proceedings; insisting that without such proof it did not appear that said court of probate could entertain jurisdiction, and if there was a want of jurisdiction, that the pretended record was no record, but a narration of no importance or efficacy as evidence ; and such was the opinion of the court, but inasmuch as the record stated the necessary facts to be proved, though somewhat generally, the judge decided that he would receive the record as prima facie evidence, though not conclusive upon the jurisdictional facts, .and that the plaintiff should be allowed to prove that the defendant was not a resident of the district and had no usual place of abode therein at the time of the appointment, and that no such notice was given as the statute required. Thereupon the plaintiff offered such evidence, the defendant objecting, and the court found and adjudged that at the time of the appointment the defendant was not, and had not been for three months, a resident of the town or district of Plymouth, but of White Plains in the state of New York ; and likewise, that notice of the application for the appointment of a conservator, “ was not left at the usual place of abode of said Terry, for he had no such residence in the district,” and therefore decided that the appointment was void and created no legal incompetence in the defendant to contract a debt with the plaintiff. The admission of this evidence gives rise to the chief question discussed in the case.
On the part of the plaintiff it is said, that a court of infe[280]*280rior and limited jurisdiction (as this is claimed to be,) can not by its own finding confer on itself a jurisdiction where upon the real facts there is none ; and hence, that the defendant, not being a resident in the district, and having no notice to appear, and not appearing before the court, can not, without manifest injustice, be precluded from showing the true state of the facts. On the part of the defendant it is claimed that the decision of the court is conclusive, alike on the jurisdictional facts and the general merits of the case.
Two important questions arise in the examination of the point in dispute; 1st. Has a court of limited and inferior jurisdiction, power to determine its jurisdictional facts, to the exclusion of all collateral inquiry by a person who is affected by the judgment and who was not present; and 2d. If it has or has not this power, is the case before us one of this character 1
The reason assigned in the books for holding a judgment final and conclusive between the parties is, that the court, having full power to investigate and decide the facts, and being properly called upon in due course of law to do it, must be presumed to have fairly done it, and hence that further controversy ought not to be allowed. Of course, we suppose, if the court has not jurisdiction, the reason fails and the consequences do not follow. It is laid down as elementary law, that a court must have jurisdiction over the parties, the subject matter and the process, or its proceedings are coram nonjudice. This was said by Ch. J. Reeve, in Grumon v. Raymond, 1 Conn., 44, and by the court in Perkins v. Proctor, 2 Wils., 383, and in Martin v. Marshall, Hob., 63. It is true that every presumption is in favor of a court having general jurisdiction, while no such presumption exists in favor of a court of limited and inferior jurisdiction, or of any court not proceeding according to the common law; but even in the former case, that presumption is not always conclusive, but may be rebutted and disproved. It may be true that in the case of courts of inferior and special jurisdiction, if the record finds the jurisdictional facts, it may be prima facie evidence of the existence of those facts. In the present case the [281]*281record was received for that purpose and allowed to have so much effect as to change the burthen of proof from the defendant to the plaintiff It must not be understood from what we have said that we question the conclusive effect of the judgment of a court allowed to have jurisdiction, but only of one of a court whose jurisdiction is not admitted, and whose jurisdictional facts are open to enquiry. It is, we believe, familiar law, that if a person will avail himself of the judgment of a court of special jurisdiction, he must aver and prove the facts necessary to give that jurisdiction.
The statute which directs how a conservator shall be appointed, is in these words : “ Whenever any person' by reason of idiocy, lunacy, age, sickness, or any other cause, shall have become incapable of taking care of himself or of managing his affairs, and shall have any estate real or personal, the court of probate in the district in which such person resides, shall, on the application of the selectmen of the town where he belongs, or of any relative of such person, make due enquiry, and if it shall find that such person is incapable of taking care of himself, shall appoint some proper person to be his conservator.” The next section directs who shall sign the application, and that a summons to the respondent shall accompany it, issued by proper authority, notifying him to appear before the court, which shall be served by some proper officer leaving a true and attested copy at the usual place of abode of the respondent, at least twelve days before the time of the hearing.
It is most obvious that the probate court of the district of Plymouth could not appoint a conservator over a person who did not reside in the district, nor until notice and summons by copy had been left twelve days previously at the usual place of abode of the respondent. Now here it is found that Terry did not reside in the district, but in White Plains in the state of New York, and had so resided for three months before the appointment. His general domicil in Plymouth might perhaps have been evidence enough, (were we to pass upon the evidence,) that his residence was in Plymouth, were the finding of domicil not accompanied with [282]*282the additional exact finding, that he was notwithstanding residing in White Plains, and not in Plymouth ; and further, that no copy of the summons was left at his usual place of abode, but only at a house in Plymouth, which was not his usual place of abode and had not been for three months. "We must take the fact as we find it, correct or otherwise, and therefore we are constrained, however reluctantly, to say that Terry was not within the jurisdiction of the court, nor duly summoned and made a party to the proceedings as the law requires, and can not be concluded by this exparte proceeding.
We need not examine at length the general question whether a court that does not proceed according to the course of the common law, but exercises a restricted and special jurisdiction under some provisions of the statute law. can, according to the authorities, or the reason of the thing, conclusively find the facts essential to the exercise of jurisdiction. The case on trial does not in our view require it; still we do not hesitate to say, that after considering the authorities which have been read to us on the trial, we have a strong impression that such is not the law,
It is said that the admission of the evidence in question is inconsistent with the idea of the absolute verity and conclusiveness of a judgment of a court of record, and allows an impeachment of such a judgment. This is only another mode of stating the same objection. There is here an important distinction overlooked. We admit that a court having jurisdiction, can and must establish conclusively every material fact involved in the issue, but it is otherwise if the court has not jurisdiction; and so the record of a court having jurisdiction is conclusive and may not by the party be collaterally attacked. But this record is claimed not to be a record, and it certainly is not a conclusive one if a probate court has not power to find conclusively the facts necessary to confer jurisdiction. One thing is certain, as we have already said, that whoever relies on the judgment of a court of limited and special jurisdiction, must aver and prove the facts necessary to give the court jurisdiction,
[283]*283In Grumon v. Raymond, supra, the court say: “ It is no uncommon thing, where there is a court of limited jurisdiction, that the jurisdiction depends upon the existence of certain things, and for want of them the court has no jurisdiction, and everything done by the court is coram non judice. In Holyoke v. Haskins, 5 Pick., 20, administration had been granted by the judge of probate of the county of Suffolk, the intestate being held to have had her domicil there, and the estate was proceeded with and settled there. Many years after, a second administration was granted by the judge of probate for Middlesex, on proof that the intestate was domiciled at the time of her death in Middlesex and not in Suffolk. The last administration was sustained by the supreme court. The court say: “ The proceedings and judgment of a court not having jurisdiction of the subject matter depending, are coram non judice. The judge of probate for the county of Suffolk had no jurisdiction, and it seems clear that the grant of administration and the subsequent sale of the demanded premises under it, are void; and it is equally clear that he had not jurisdiction, if the domicil of the intestate at the time of her death was in fact in the county of Middlesex.” In the course of their opinion, the court further say, that the case stands on the same ground as if administration had been granted upon the supposition that there was no will, when a will afterward appeared, or that the intestate was dead, when in fact he was alive. In Starbuck v. Murray, 6 Wend., 148. Marcy, J., giving the opinion of the court, says: “ But it is strenuously contended, that if other matter may be pleaded by the defendant, he is estopped from asserting any thing against the allegation contained in the record. It is said to import verity, and the parties to it can not be heard to impeach it. It appears to me that this proposition assumes the very fact to be established, which is the only question in issue. For what purpose does the defendant question the jurisdiction of the court? Solely to show that its proceedings and judgments are void.” In Smith v. Rice, 11 Mass., 506, Jackson, J., giving the opinion of the court, says : “ It was said in the argu[284]*284ment for the tenant, that, as the judge of probate had jurisdiction of the cause, the decree is conclusive. This is undoubtedly true in cases where the probate court is acting within its jurisdiction and pursuing the course prescribed by law. But in the case at bar the very grievance complained of is, that the party had no notice of the pendency of the cause, and of course no opportunity to appeal.” And again: “ If it appear that the judge has exceeded his authority or that he has undertaken to determine the rights of parties over whom he has no jurisdiction, and the defendants had no notice and have been guilty of no neglect, they may consider the decree as void. The defect is not confined to what may be considered strictly a want of examination of the cause, but if the inferior tribunal proceeds in a manner not authorized, the proceeding is void.” See further, Bowman v Russ, 6 Cow., 237. In Bloom v. Burdick, 1 Hill, 130, Bronson, J. says : “ The surrogate undoubtedly acquired jurisdiction of the subject matter on the presentation of the petition and account, but that was not enough ; it was necessary that he should acquire jurisdiction over the persons to be affected by the sale. It is, (he adds,) a cardinal principle in the administration of justice, that no man can be condemned, or divested of his right, until he has had the opportunity of being heard. If judgment is rendered against him before that is done, the proceeding will be as utterly void as though the court had undertaken to act when the subject matter was not within its cognizance; ” and he cites numerous authorities in support of this position. In Noyes v. Butler, 6 Barb., 616, the court say, that it has been distinctly settled by repeated adjudications, that no statements in the record can conclude the parties as to any jurisdictional facts. In Cook v. Darling, 18 Pick., 393, in speaking of the difference between courts of general and special jurisdiction, the court say: “ Adifferent rule may prevail in regard to decrees and adjudications of inferior courts, not proceeding according to the course of the common law. If they exceed their jurisdiction, or proceed contrary to law, the proceeding is void, and this may be shown by plea, but the principal reason is, that no writ of [285]*285error lies to reverse such a judgment ;s! and they cite Smith v. Rice, supra. We will not pursue the subject further. Thus much we have thought it proper to say, but we intend to place our decision on the more narrow ground that a court of probate in appointing a conservator can proceed only in the case specified in the statute and in the manner there prescribed, leaving these jurisdictional facts open to enquiry and disproof.
The correct principle of law governing this class of cases, we believe to be, that where the legislature empowers a probate court, a board of overseers, a board of commissioners, the selectmen of a town, or the like, to divest a person of the ability to-make contracts and conduct and manage his affairs, under particular circumstances as pre-requisites, and in a manner particularly prescribed, these circumstances must actually exist and this manner of proceeding must be observed, and are both indispensable to the jurisdiction. They must be proved too, and if the records or papers show these facts, as is usual and proper, it is no more than prima facie evidence of their existence, and the person who afterwards comes to the knowledge of their supposed existence can deny and disprove them; otherwise he might suffer an irreparable injury. Leroy v. N. York, 20 Johns., 430. The People v. Brooklyn, 23 Barb., 166. Bangs v. McIntosh, id., 602.
Suppose a kindred power to this is delegated to a board of commissioners or selectmen, to be exercised only over persons residing in their respective towns, or over persons fifty years of age and upwards, or of foreign birth, or of the male sex, and the mode of proceeding to obtain jurisdiction is carefully prescribed, such as filing an application' by the blood relations of the respondent and a summons to issue under the hand of a magistrate for the respondent to appear in person that he may be actually seen and examined, and if he' can not be found then a certified copy to be left at his usual place of abode; and suppose some or all of these prerequisites are wanting; can the board proceed to. make a valid appointment ? We think not; nor can the want of these [286]*286facts be covered up by any recitals or findings however formal and perfect by a board having no jurisdiction of the matter. Suppose such a board of the town of Hartford or the probate court of this district, should find and adjudge, that the president of Yale College is a resident of Hartford and a suitable person to be placed under a conservator, and should further find that a certified copy of an application and summons for an appointment had been left at his usual place of abode, and thereupon proceed to appoint a conservator over him; would this conclude that gentleman and subject him to the control of the conservator ? Suppose the same court should find and adjudge, that the late Hon. Asa Bacon of New Haven, was, at the time of his death, settled in Hartford, and proceed to administer upon his estate, without the knowledge of his representatives in New Haven ; would this be conclusive upon them ? Certainly not, according to the decision in Holyoke v. Haskins, cited above, which is that case exactly. A court of probate it is true possesses a higher character than a board of selectmen, but it is not a court of record at the common law, nor does it proceed according to the course of the common law, though it may be otherwise in some respects in Connecticut. But its jurisdiction is limited and special, even in discharging its more appropriate duties, the settlement of estates, and more truly so, in discharging the special duties of a different character imposed upon it from time to time, by statutory enactments. Touching the appointment of conservators, it does not seem to us to proceed so much as a court to settle estates, as it does as a special tribunal clothed with a new power for a defined purpose. The remarks of Bronson, J., in Bloom v. Burdick, already referred to, are quite to this point. “ In every form in which this question has arisen, it has been held, that a statute authority by which a man may be deprived of his estate, must be strictly pursued.” In Thatcher v. Powell, 6 Wheat., 119, Marshall, Ch. J., said : “ It is a self-' evident proposition, that no individual or public officer can sell and convey a good title to the land of another, unless authorized so to do by express law; and the person invested [287]*287with such a power must pursue with precision the course prescribed bylaw, or his act will be invalid.” In accordance with this doctrine, the case of Jackson v. Esty, 7 Wend., 149, was decided. Savage, Ch. J., says: “ It is a cardinal principle that a man shall not be divested of his property but by his own acts or the operation of law; and where proceedings are instituted to change the title to real estate by operation of law, the requirements of the law under which the proceedings are had must be strictly pursued. The rule which requires a strict compliance with a statute authority under which a man may be deprived of his estate, is one of a most salutary tendency.
For these reasons we think there is no error in the judgment complained of.
It was suggested on the argument, that the petition to the court of probate for the appointment of the conservator was insufficient in not stating more distinctly and fully that Terry was a resident of Plymouth. The allegations are in the usual form, and we think sufficient.
In this opinion the other judges concurred.
Judgment affirmed.