that purpose only, such residence is not bona fide, and does not confer upon the courts of that State or country jurisdiction over the marriage relation, and any decree they may assume to make would be void as to the other party.1

There are a number of cases in which this subject has been considered. In Inhabitants of Hanover v. Turner, 14 Mass. 227, instructions to a jury were sustained, that if they were satisfied the husband, who had been a citizen of Massachusetts, removed to Vermont merely for the purpose of procuring a divorce, and that the pretended cause for divorce arose, if it ever did arise, in Massachusetts, and that the wife was never within the jurisdiction of the court of Vermont, then and in such case the decree of divorce which the husband had obtained in Vermont must be considered as fraudulently obtained, and that it could not operate so as to dissolve the marriage between the parties. See also Vischer v. Vischer, 12 Barb. 640; and McGiffert v. McGiffert, 31 Barb. 69. In Chase v. Chase, 6 Gray, 157, the same ruling was had as to a foreign divorce, notwithstanding the wife appeared in and defended the foreign suit. In Clark v. Clark, 8 N. H. 21, the court refused a divorce on the ground that the alleged cause of divorce (adultery), though committed within the State, was so committed while the parties had their domicile abroad. This decision was followed in Greenlaw v. Greenlaw, 12 N. H. 200. The court say: "If the defendant never had any domicile in this State, the libellant could not come here, bringing with her a cause of divorce over which this court had jurisdiction. If at the time of the [alleged offence] the domicile of the parties was in Maine, and the facts furnished no cause for a divorce there, she could not come here and allege those matters which had already occurred, as a ground for a divorce under the laws of this State. Should she under such circumstances obtain a decree of divorce here, it must be regarded as a mere nullity elsewhere." In Frary v. Frary, 10 N. H. 61, importance was attached to the fact that the marriage took place in New Hampshire; and it was held that the court had jurisdiction of the wife's application for a divorce, notwithstanding the offence was committed in Vermont, but during the time of the wife's residence in New Hampshire. See also Kimball v. Kimball, 13 N. H. 225; Bachelder v. Bachelder, 14 N. H. 380; Payson v. Payson, 34 N. H. 518; Hopkins v. Hopkins, 35 N. H. 474. In Wilcox v. Wilcox, 10 Ind. 436, it was held that the residence of the libellant at the time of the application for a divorce was sufficient to confer jurisdiction, and a decree dismissing the bill because the cause for divorce arose out of the State was reversed. And see Tolen v. Tolen, 2 Blackf. 407. See also Jackson v. Jackson, 1 Johns. 424; Barber v. Root, 10 Mass. 263; Borden v. Fitch, 15 Johns. 121; Bradshaw v. Heath, 13 Wend. 407. In any of these cases the question of actual residence will be open to inquiry wherever it becomes important, notwithstanding the record of proceedings is in due form, and contains the affidavit of residence required by the practice. Leith v. Leith, 39 N. H. 20. And see McGiffert v. McGiffert, 31 Barb. 69; Todd v. Kerr, 42 Barb. 317; Hoffman v. Hoffman, 46 N. Y. 30; People v. Dawell, 25 Mich. 247. The Pennsylvania cases agree with those of New Hampshire, in holding that a divorce should not be granted unless the cause alleged occurred while the complainant had domicile within the State.

* But to render the jurisdiction of a court effectual in [* 402] any case, it is necessary that the thing in controversy, or

Dorsey v. Dorsey, 7 Watts, 349; Hollister v. Hollister, 6 Penn. St. 449; McDermott's Appeal, 8 W. & S. 251. And they hold also that the injured party in the marriage relation must seek redress in the forum of the defendant, unless where such defendant has removed from what was before the common domicile of both. Calvin v. Reed, 35 Penn. St. 375; Elder v. Reel, 62 Penn. St. 308; s. c. 1 Am. Rep. 414. For cases supporting to a greater or less extent the doctrine stated in the text, see Harding v. Alden, 9 Greenl. 140; Ditson v. Ditson, 4 R. I. 87; Pawling v. Bird's Ex'rs, 13 Johns. 192; Kerr v. Kerr, 41 N. Y. 272; Harrison v. Harrison, 19 Ala. 499; Thompson v. State, 28 Ala. 12; Cooper v. Cooper, 7 Ohio, 594; Mansfield v. McIntyre, 10 Ohio, 28; Smith v. Smith, 4 Greene (Iowa), 266; Yates v. Yates, 2 Beasley, 280; Maguire v. Maguire, 7 Dana, 181; Waltz v. Waltz, 18 Ind. 449; Hull v. Hull, 2 Strob. Eq. 174; Manley v. Manley, 4 Chand. 97; Hubbell v. Hubbell, 3 Wis. 662; Gleason v. Gleason, 4 Wis. 64; Hare v. Hare, 15 Texas, 355. And see Story, Confl. Laws, § 230 a; Bishop on Mar. and Div. 727 et seq.; ib. (4th ed.) Vol. II. § 155 et seq. The recent cases of Hoffman v. Hoffman, 46 N. Y. 30; s. c. 7 Am. Rep. 299; Elder v. Reel, 62 Penn. St. 308; s. c. 1 Am. Rep. 414; and People v. Dawell, 25 Mich. 247, are very explicit in declaring that where neither party is domiciled within a particular State, its courts can have no jurisdiction in respect to their marital status, and any decree of divorce made therein must be nugatory. A number of the cases cited hold that the wife may have a domicile separate from the husband, and may therefore be entitled to a divorce, though the husband never resided in the State. These cases proceed upon the theory that, although in general the domicile of the husband is the domicile of the wife, yet that if he be guilty of such act or dereliction of duty in the relation as entitles her to have it partially or wholly dissolved, she is at liberty to establish a separate jurisdictional domicile of her own. Ditson v. Ditson, 4 R. I. 87; Harding v. Alden, 9 Greenl. 140; Maguire v. Maguire, 7 Dana, 181; Hollister v. Hollister, 6 Penn. St. 449. The doctrine in New York seems to be, that a divorce obtained in another State, without personal service of process or appearance of the defendant, is absolutely void. Vischer v. Vischer, 12 Barb. 640; McGiffert v. McGiffert, 31 Barb. 69; Todd v. Kerr, 42 Barb. 317. See Cox v. Cox, 19 Ohio, N. s. 502; s. c. 2 Am. Rep. 415. An appearance by defendant afterwards for the purposes of a motion to set aside the decree, which motion was defeated on technical grounds, will not affect the question. Hoffman v. Hoffman, 46 N. Y. 30; s. c. 7 Am. Rep. 299.

Upon the whole subject of jurisdiction in divorce suits, no case in the books is more full and satisfactory than that of Ditson v. Ditson, supra, which reviews and comments upon a number of the cases cited, and particularly upon the Massachusetts cases of Barber v. Root, 10 Mass. 265; Inhabitants of Hanover v. Turner, 14 Mass. 227; Harteau v. Harteau, 14 Pick. 181; and Lyon v. Lyon, 2 Gray, 367. The divorce of one party divorces both. Cooper v. Cooper, 7 Ohio, 594. And will leave both at liberty to enter into new marriage relations, unless the local statute expressly forbids the guilty party from contracting a

the parties interested, be subjected to the process of the court. Certain cases are said to proceed in rem, because they take notice rather of the thing in controversy than of the persons concerned;

and the process is served upon that which is the object of [* 403] the suit, without * specially noticing the interested parties; while in other cases the parties themselves are brought before the court by process. Of the first class admiralty proceedings are an illustration; the court acquiring jurisdiction by seizing the vessel or other thing to which the controversy relates. In cases within this class, notice to all concerned is required to be given, either personally or by some species of publication or proclamation; and if not given, the court which had jurisdiction of the property will have none to render judgment.1 Suits at the common law, however, proceed against the parties whose interests are sought to be affected; and only those persons are concluded by the adjudication who are served with process, or who voluntarily appear.2 Some cases also partake of the nature both of proceedings in rem and of personal actions, since, although they proceed by seizing property, they also contemplate the service of process on defendant parties. Of this class are the proceedings by foreign attachment, in which the property of a non-resident or concealed debtor is seized and retained by the officer as security for the satisfaction of any judgment that may be recovered against him, but at the same time pro

second marriage. See Commonwealth v. Putnam, 1 Pick. 136; Baker v. People, 2 Hill, 325.

1 Doughty v. Hope, 3 Denio, 594. See Matter of Empire City Bank, 18 N. Y. 199; Nations v. Johnson, 24 How. 204, 205; Blackwell on Tax Titles, 213.

2 Jack v. Thompson, 41 Miss. 49. As to the right of an attorney to notice of proceedings to disbar him, see notes to pp. 337 and 404. "Notice of some kind is the vital breath that animates judicial jurisdiction over the person. It is the primary element of the application of the judicatory power. It is of the essence of a cause. Without it there cannot be parties, and without parties there may be the form of a sentence, but no judgment obligating the person." See Littleton v. Richardson, 34 N. H. 179; Black v. Black, 4 Bradf. Sur. Rep. 205. Where, however, a statute provides for the taking of a certain security, and authorizes judgment to be rendered upon it on motion, without process, the party entering into the security must be understood to assent to the condition, and to waive process and consent to judgment. Lewis v. Garrett's Adm'r, 6 Miss. 434; People v. Van Eps, 4 Wend. 390; Chappee v. Thomas, 5 Mich. 53; Gildersleeve v. People, 10 Barb. 35; People v. Lott, 21 Barb. 130; Pratt v. Donovan, 10 Wis. 378; Murray v. Hoboken Land Co., 18 How. 272; Philadelphia v. Commonwealth, 52 Penn. St. 451; Whitehurst v. Coleen, 53 Ill. 247.

cess is issued to be served upon the defendant, and which must be served, or some substitute for service had before judgment can be rendered.

In such cases, as well as in divorce suits, it will often happen that the party proceeded against cannot be found in the State, and personal service upon him is therefore impossible, unless it is allowable to make it wherever he may be found abroad. But any such service would be ineffectual. No State has authority to invade the jurisdiction of another, and by service of process compel parties there resident or being to submit their controversies to the determination of its courts; and those courts will consequently be sometimes unable to enforce a jurisdiction which the State possesses in respect to the subjects within its limits, unless

* a substituted service is admissible. A substituted service [* 404] is provided by statute for many such cases; generally in the form of a notice, published in the public journals, or posted, as the statute may direct; the mode being chosen with a view to bring it home, if possible, to the knowledge of the party to be affected, and to give him an opportunity to appear and defend. The right of the legislature to prescribe such notice, and to give it effect as process, rests upon the necessity of the case, and has been long recognized and acted upon.1

But such notice is restricted in its legal effect, and cannot be . made available for all purposes. It will enable the court to give effect to the proceeding so far as it is one in rem, but when the res is disposed of, the authority of the court ceases. The statute may give it effect so as far as the subject-matter of the proceeding is within the limits, and therefore under the control, of the State; but the notice cannot be made to stand in the place of process, so as to

"It may be admitted that a statute which authorized any debt or damages to be adjudged against a person upon purely ex parte proceedings, without pretence of notice, or any provision for defending, would be a violation of the constitution, and void; but when the legislature has provided a kind of notice by which it is reasonably probable that the party proceeded against will be apprised of what is going on against him, and an opportunity is afforded him to defend, I am of opinion that the courts have not the power to pronounce the proceedings illegal." Denio, J., in Matter of Empire City Bank, 18 N. Y. 200. See, also, per Morgan, J., in Rockwell v. Nearing, 35 N. Y. 314; Nations v. Johnson, 24 How. 195; Beard v. Beard, 21 Ind. 321; Mason v. Messenger, 17 Iowa, 261; Cupp v. Commissioners of Seneca Co., 19 Ohio, N. s. 173; Campbell v. Evans, 45 N. Y. 356; Happy v. Mosher, 48 N. Y. 317.

subject the defendant to a valid judgment against him personally. In attachment proceedings, the published notice may be sufficient to enable the plaintiff to obtain a judgment which he can enforce by sale of the property attached, but for any other purpose such judgment would be ineffectual. The defendant could not be followed into another State or country, and there have recovery against him upon the judgment as an established demand. The fact that process was not personally served is a conclusive objection to the judgment as a personal claim, unless the defendant caused his

appearance to be entered in the attachment proceedings.1 [* 405] Where a party has property in a State, and * resides else

where, his property is justly subject to all valid claims that may exist against him there; but beyond this, due process of law would require appearance or personal service before the defendant could be personally bound by any judgment rendered.

The same rule applies in divorce cases. The courts of the State where the complaining party resides have jurisdiction of the subjectmatter; and if the other party is a non-resident, they must be authorized to proceed without personal service of process. The publication which is permitted by the statute is sufficient to justify a decree in these cases changing the status of the complaining party, and thereby terminating the marriage; 2 and it might be

1 Pawling v. Willson, 13 Johns. 192; Heirs of Holman v. Bank of Norfolk, 12 Ala. 369; Curtis v. Gibbs, 1 Penn. 399; Miller's Ex'r v. Miller, 1 Bailey, 242; Cone v. Cotton, 2 Blackf. 82; Kilburn v. Woodworth, 5 Johns. 37; Robinson v. Ward's Ex'r, 8 Johns. 86; Hall v. Williams, 6 Pick. 232; Bartlet v. Knight, 1 Mass. 401; St. Albans v. Bush, 4 Vt. 58; Fenton v. Garlick, 8 Johns. 194; Bissell v. Briggs, 9 Mass. 462; Denison v. Hyde, 6 Conn. 508; Aldrich v. Kinney, 4 Conn. 380; Hoxie v. Wright, 2 Vt. 263; Newell v. Newton, 10 Pick. 470; Starbuck v. Murray, 5 Wend. 161; Armstrong v. Harshaw, 1 Dev. 188; Bradshaw v. Heath, 13 Wend. 407; Bates v. Delavan, 5 Paige, 299; Webster v. Reid, 11 How. 460; Gleason v. Dodd, 4 Met. 333; Green v. Custard, 23 How. 486. In Ex parte Heyfron, 7 How. (Miss.) 127, it was held that an attorney could not be stricken from the rolls without notice of the proceeding, and opportunity to be heard. And see ante, p. 337 n. Leaving notice with one's family is not equivalent to personal service. Rape v. Heaton, 9 Wis. 329. And see Bimeler v. Dawson, 4 Scam. 536.

2 Hull v. Hull, 2 Strob. Eq. 174; Manley v. Manley, 4 Chand. 97; Hubbell v. Hubbell, 3 Wis. 662; Mansfield v. McIntyre, 10 Ohio, 28; Ditson v. Ditson, 4 R. I. 97; Harrison v. Harrison, 19 Ala. 499; Thompson v State, 28 Ala. 12; Harding v. Alden, 9 Greenl. 140; Maguire v. Maguire, 7 Dana, 181; Todd v. Kerr, 42 Barb. 317. It is immaterial in these cases whether notice was actually