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

terested, 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 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

Barb. 640; McGiffert r. McGiffert, 31 Barb. 69; Todd v. Kerr, 42 Barb. 317; People v. Baker, 76 N. Y. 78; s. c. 32 Am. Rep. 274; Cross v. Cross, 108 N. Y. 628; though there is actual notice. O'Dea v. O'Dea, 101 N. Y. 23. So in Ontario, Magurn v. Magurn, 11 Ont. App. 178. See Cox v. Cox, 19 Ohio St. 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, 4 R. I. 87, which reviews and comments upon a number of the cases cited, and particularly upon the Massachusetts cases of Barber v. Root, 10 Mass. 260; 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 second marriage. See Commonwealth v. Put nam, 1 Pick. 136; Baker v People, 2 Hill, 325. A party who has gone into another State and procured a divorce will not be heard to allege his own fraud to impeach

it. Elliott v. Wollfrom, 55 Cal. 384. A divorce good at the place of domicile will be sustained in England though the cause would rot sustain a divorce there. Harvey v. Farnie, L. R. 8 App. Cas. 43; Turner v. Thompson, L. R. 13 P. D. 37.

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. 410, 411, and 498. "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 Bragg's Case, 11 Coke, 99 a; Rex v. Chancellor of Cambridge, 1 Str. 567; Cooper v. Board of Works, 14 C. B. N. s. 194; Meade v. Deputy Marshal, 1 Brock. 324; Goetcheus v. Mathewson, 61 N. Y. 420; Underwood v. McVeigh, 23 Gratt. 409; McVeigh v. United States, 11 Wall. 259; Littleton v. Richardson, 34 N. H. 179; Black v. Black, 4 Bradf. Sur. Rep. 174, 205; Mead v. Larkin, 66 Ala. 87. Succession of Townsend, 36 La. Ann. 447. Where, however, a statute provides for the taking of a certain security, and au

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 process 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 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

thorizes 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 . Garrett's Adm'r, 6 Miss. 434; People v. Van Eps, 4 Wend. 387; 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 Pa. St. 451; Whitehurst v. Coleen, 53 Ill. 247.

1 It may be admitted that a statute which should authorize any debt or damages to be adjudged against a person upon purely ex parte proceedings, without a pretence of notice, or any provision for

defending, would be a violation of the constitution, and be void; but where the legislature has presented 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 proceeding illegal." Denio, J., in Matter of Empire City Bank, 18 N. Y. 199, 215. See also, per Morgan, J., in Rockwell v. Nearing, 35 N. Y. 302, 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 St. 173; Campbell v. Evans, 45 N. Y. 356; Happy v. Mosher, 48 N. Y. 313; Jones v. Driskell, 94 Mo.

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 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 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. Where a party has property in a State, and

190; Palmer v. McCormick, 28 Fed. Rep. 541; Traylor v. Lide, 7 S. W. Rep. 58 (Tex.). If an absent defendant returns pending publication, he need not be personally served. Duché v. Voisin, 18 Abb. N. C. 358. Jurisdiction cannot be acquired by ordering goods of a non-resident for the mere purpose of attaching them. Copas v. Anglo-Am. Prov. Co., 41 N. W. Rep. 690 (Mich.). In Burnham v. Commonwealth, 1 Duv. 210, a personal jndgment against the absconding officers of the provisional government was sustained. But in the case of constructive notice, if the party appears, he has a right to be heard, and this cannot be denied him, even though he be a rebel. McVeigh v. United States, 11 Wall. 259, 267.

1 Pawling v. Willson, 18 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, 6 Johns. 194; Bissell v. Briggs, 9 Mass. 462; s. c. 6 Am. Dec. 88; Denison v. Hyde, 6 Conn. 508; Aldrich v. Kinney, 4 Conn. 380; s. c. 10 Am. Dec. 151; Hoxie v. Wright, 2 Vt. 263; Prosser v. Warner, 47 Vt. 667; s. c. 19

Am. Rep. 132; Newell v. Newton, 10 Pick. 470; Starbuck v. Murray, 5 Wend. 148; s. c. 21 Am. Dec. 172; Armstrong v. Harshaw, 1 Dev. 187; Bradshaw v. Heath, 13 Wend. 407; Bates v. Delavan, 5 Paige, 299; Webster v. Reid, 11 How. 437; Gleason v. Dodd, 4 Met. 333; Green v. Custard, 23 How. 484; Eliot v. McCormick, 144 Mass 10. A personal judgment on such service when sued on is no basis for recovery. Needham v. Thayer, 147 Mass. 536; Eastman v. Dearborn, 63 N. H. 364. But see Everhart v. Holloway,55 Iowa, 179. A personal judgment cannot be based on service by publication or personal service out of the State. Denny v. Ashley, 20 Pac. Rep. 331 (Col.). Service by publication may suffice for a decree of partition of land, but not to create a personal demand for costs. Freeman v. Alderson, 119 U. S. 185. So if notice is served in another State. Cloyd v. Trotter, 118 Ill. 391. A judgment in personam declaring bonds void does not bind a non-resident holder where the only notice was constructive by publication. Pana v. Bowler, 107 U. S. 529. In Ex parte Heyfron, 8 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. 410, note. Leaving notice with one's family is not equivalent to personal service. Rape v.

resides elsewhere, 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 subject-matter; 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;1 and it might be sufficient also to empower the court to pass upon the question of the custody and control of the children of the marriage, if they were then within its jurisdiction. But a decree on this subject could only be absolutely binding on the parties while the children remained within the jurisdiction; if they acquire a domicile in another State or country, the judicial tribunals of that State or country would have authority to determine the question of their guardianship there.2

But in divorce cases, no more than in any other, can the court make a decree for the payment of money by a defendant not served with process, and not appearing in the case, which shall be binding upon him personally. It must follow, in such a case, that the wife, when complainant, cannot obtain a valid decree for alimony, nor a valid judgment for costs. If the defendant had property within the State, it would be competent to provide by

Heaton, 9 Wis. 329. At least after defendant has himself left the State. Amsbaugh v. Exchange Bank, 33 Kan. 100. And see Bimeler v. Dawson, 5 Ill. 536.

1 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. 87; Harrison v. Harrison, 19 Ala. 499; Thompson v. State, 28 Ala. 12; Harding v. Alden, 9 Me. 140; s. c. 23 Am. Dec. 549; Maguire v. Maguire, 7 Dana, 181; Hawkins v. Ragsdale, 80 Ky. 353. It is immaterial in these cases whether notice was actually brought home to the defendant or not. And see Heirs of Holman v. Bank of Norfolk, 12 Ala. 369. But see contra, People v. Baker, 76 N. Y. 78; O'Dea v. O'Dea, 101 N. Y. 23; Magurn v. Magurn, 11 Ont. App. 178; Flower v. Flower, 42 N. J. Eq. 152.

2 This must be so on general principles, as the appointment of guardians for minors is of local force only. See Morrell v. Dickey, 1 Johns. Ch. 153; Woodworth v. Spring, 4 Allen, 321; Potter v. Hiscox, 30 Conn. 508; Kraft v. Wickey, 4 G. & J. 322; s. c. 23 Am. Dec. 569. In Kline v. Kline, 57 Iowa, 386, an order awarding custody of children was held inoperative when at the time the children were in another State; and in People v. Allen, 40 Hun, 611, an order made where all parties resided was held binding in another State. The case of Townsend v. Kendall, 4 Minn. 412, appears to be contra, but some reliance is placed by the court on the statute of the State which allows the foreign appointment to be recognized for the purposes of a sale of the real estate of a ward.