agent residing and keeping an office within the State subject to process of the courts.1

Of these rulings in New York, the Supreme Court of the United States, BRADLEY, J., say: "These decisions upon the construction of the statute are binding upon us, whatever we may think of their soundness, on general principles." The ground upon which this ruling in the courts of New York is placed seems to be that a corporation is a resident of the State where created, and cannot emigrate or remove to another State, while the New York statute expressly excepts from the benefits of the limitations persons who are "out of the State when the cause of action shall accrue," and that the time of absence "shall not be taken as any part of the time limited for commencement" of the action; and that there is a legal impossibility for a corporation of another State to come within the State of New York.

HUNT, Justice, in the case cited, says: "Statutes of limitations are in their character arbitrary. They rest upon no other foundation than the judgment of a State as to what will promote the interests of its citizens."3 Justice MILLER, in the same case, dissenting, says: "The liability to suit, where process can at all times be served, must, in the nature of things, be the test of the meaning of the statute. A different rule applied to an individual, because he is a citizen or resident of another State, is a violation at once of equal justice and of the rights conferred by the second section of the fourth Article of the Federal Constitution, that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States."4

In Illinois a different rule has been asserted by the Appellate Court. The doctrine here laid down is, that the statute runs where there is ability to obtain service, and that where a foreign corporation does business in the State having an office and agents therein, it may plead the statute.5

Thompson v. Tioga R. R. Co., 36 Barb. 79; Olcutt v. Tioga R. R. Co., 20 N. Y. 210; Rathbun v. Northern Cent. R. R. Co., 50 N. Y. 656; Burroughs v. Bloomer, 5 Denio, 532; McCord v. Woodhull, 27 How. Pr. 54; Tioga R R. Co. v. Blossburg & Corning R. R. Co., 20 Wall. 137.

2 Tioga R. R. Co. v. Blossburg &

Corning R. R. Co., 20 Wall. 137, 149. 3 20 Wall. p. 150.

4

Tioga R. R. Co. v. Blossburg & Corning R. R. Co., 20 Wall. 152.

5 Pennsylvania Company v. Sloan, Chicago Legal News, Vol. X., p. 381. And also reported in 1 Bradwell's Appel. Ct. Rep. 364. See, also, infra, Chap. 26.

I. INSTITUTION OF MARRIAGE. INTER-STATE VALIDITY OF MARRIAGES. II. DIVORCE. JURISDICTION TO GRANT THE SAME.

III.

INTER-STATE VALIDITY OF DIVORCES.

IV. INTER-STATE CUSTODY OF CHILDREN. ENFORCEMENT OF ALIMONY. V. INTER-STATE EFFECT OF FORMER ADJUDICATION.

I. INSTITUTION OF MARRIAGE. INTER-STATE VALIDITY OF MARRIAGES.

Nature of the Marriage Contract. Marriage is a legal institution provided for by law for the good of the public and State, and the happiness and prosperity of individuals. It is not a mere contract, to be entered into and dissolved at the will of the parties, but depends in both respects upon the approbation and concurrence of the government and the law as declared and administered by the officially authorized authorities thereof.1

The obligation of the marriage relation is recognized among all christian people, and a marriage valid and binding in the State or country where celebrated according to the law thereof, is, as a general principle, valid and binding everywhere else, whether in the same or in a foreign State or country. Such is the universal law, subject, however to these exceptions, that it be not incestuous, polygamous, or repugnant to good morals, and the ordinary policy and sense in which it is regarded by civilized nations. But no State or people are bound to countenance or sustain in their midst, or to protect by law, practices or connections under the color of marriage which are inimical to the

1 Cabell v. Cabell, 1 Met. (Ky.) 319, 327, 328; Roche v. Washington, 19 Ind. 53.

22 Kent, *92; Medway v. Need

ham, 16 Mass. 157; Stevenson v. Gray, 17 B. Mon. 193; 1 Bishop on Marri. age and Divorce, §§ 355, 370, and cases cited.

public or private morals of the people, or contrary to the provisions of domestic laws, however valid they may have been where entered into in countries authorizing the same.↳

The ruling in most, if not all of the American States is, that the marriage relation may be dissolved by legislative enactments in some and by judicial decree or judgment in other of the States. at the will of the sovereign power, expressed in the constitution and laws, with or without the concurring consent of the parties. The right to do so does not come within the inhibition of the constitution as to the impairing the obligation of contracts. It is regarded as an institution of State, and not a mere contract. Contracting to marry does not of itself create a marriage, but it only becomes such by the formal act of the law. Hence it is, that the marriage capacity of persons is different, in a legal point of view, in different States, for, being a creature of the law, each sovereignty regulates it to suit its own views of the public good, declaring who are competent to enter into the marriage relation, and the manner of celebrating the same, and rendering it binding in law. But subject always to the one great leading principle of law, of a general nature, that if legal and valid in the State wherein it is entered into, the marriage is legal and valid in all others into which the parties come, if in its nature it be not opposed to the natural law, or good morals, or to the positive law and policy of such other States as herein before stated.

So, likewise, if an alleged marriage be invalid in law where entered into, it is invalid everywhere else, not only upon the principle of general law as to the marriage status, but that in fact an invalid one is no marriage at all, either where entered into or elsewhere. By invalidity, however, is not to be underderstood mere informality or irregularity as to the method of entering into the same, but such a state of relation as the law of the place where entered into does not and will not recognize as creating the marriage state between the parties thereto.

'State v. Kennedy, 76 N. C. 251; Kinney v. Commonwealth, 6 The Reporter, 733, (Va. Sept. 1878.) But, see Medway. Needham, 16 Mass. 157; Putnam v. Putnam, 8 Pick, 433; Stevenson v. Gray, 17 B. Mon. 193.

2 Cabell v. Cabell, 1 Met. (Ky.) 319; Dartmouth College v. Woodward, 4

Wheat. 518; 2 Kent *108; Gaines v. Gaines, 9 B. Mon. 295, 308; Maguire v. Maguire, 7 Dana, 181; Berthelemy v. Johnson, 3 B. Mon. 90.

Greenwood v. Curtis, 6 Mass, 358; Bishop on Marriage and Divorce, vol. 1,390; Cheever v. Wilson, 9 Wall. 108.

II.

DIVORCE. JURISDICTION TO GRANT THE SAME.

In Ecclesiastical Courts. In the mother country jurisdiction in matters of divorce was vested exclusively in the ecclesiastical courts; the courts of common law had no authority upon the subject.1

By Statute in Common Law and Chancery Courts. It followed from this, that there being no ecclesiastical courts in the American colonies, or subsequently in the States, there was no jurisdiction whatever here to grant divorces, except as conferred by statute upon the common law, or chancery courts, of the country. Until so conferred upon the judiciary the power was in the legislative departments of the local governments alone; but when conferred upon the courts they took it, so far as consistent with the nature of our institutions, to be exercised in accordance with the rules and principles of the ecclesiastical courts of the mother country in similar cases.4

Lex Loci Contractus. The lex loci contractus is ordinarily the legal test of validity of marriage, legitimacy and divorce, when brought in question in other States, but the courts of such other States will not recognize or be governed in their decisions by such laws, if in their nature they encourage immorality, or are in violation of the general moral tone or policy of civilized States, or outrage the policy or conscience of the community thus called on to enforce them.5

Residence in Cases of Divorce. Residence of the applicant, in good faith, within the State where the application is made, is necessary, to enable a court to take jurisdiction of an application for a divorce, and to dispose of the same by granting the applicant a divorce, if cause is found therefor. And where the hus

'Le Barron v. Le Barron, 35 Vt. 365; Brinkley v. Brinkley, 50 N. Y. 184, 190; Burtis v. Burtis, Hopk. Ch. 557.

Le Barron v. Le Barron, 35 Vt. 365; Brinkley v. Brinkley, 50 N. Y. 184, 190.

Le Barron v. Le Barron, 35 Vt. 365; Starr v. Pease, 8 Conn. 541; Cooley's Const. Lim. *110 et seq.

4 Le Barron v. Le Barron, 35 Vt. 365; Brinkley v. Brinkley, 50 N. Y. 184, 190; Griffin v. Griffin, 47 N. Y. 134.

5 Eubanks v. Banks, 34 Geo. 407.

Wright . Wright, 24 Mich. 180; Manley v. Manley, 3 Pinn. 390; Shafer v. Bushnell, 24 Wis. 372; Hubbell v. Hubbell, 3 Wis. 662; Gleason v. Gleason, 4 Wis. 64; Hanover v. Turner, 14

band is a resident of one State, and the wife is resident in another, the courts of each State have jurisdiction to grant a divorce, at the instance of the party so residing therein; and if a divorce be granted in one of these States to the party so residing therein by proceedings in rem, that does not preclude the courts of the other State from granting a divorce to the party residing in such other State; and the rule is the same, whether the decree was regularly or irregularly obtained in the case of the one first obtaining it. In such cases the courts of both States have power to dissolve the marriage relations of the parties, so far as regards the parties residing in their respective territorial limits, and upon such terms in respect to such resident party as are permitted by the laws thereof; and this, too, notwithstanding the fact that a divorce has been decreed to the other party, and upon different terms, in the State where such other party resides, or resided at the time thereof. This power of the courts, where the applicant resides, is not dependent upon the residence of the defendant in the same State or jurisdiction, but exists though the defendant never resided in the State. The court acts upon the contract, and dissolves that, so far at least as regards the party making the application, over whom and the contract, as personal to such party, the court has actual jurisdiction; nor is it neces sary, under the Wisconsin statute, that the cause relied upon for divorce shall have accrued within that State. 3

Void Decree of Divorce. But a decree of divorce in a court of a State in which neither party is domiciled, and in a suit in

Mass. 227; Chase v. Chase, 6 Gray, 157; Vischer v. Vischer, 12 Barb. 640; McGiffert v. McGiffert, 31 Barb. 69; Wilcox v. Wilcox, 10 Ind. 436; Ditson v. Ditson, 4 R. I. 87. This case is a leading one on this subject. The point is very exhaustively discussed, and the conclusion arrived at is, that the jurisdiction of a court in divorce depends not upon the place of the marriage, or of the breach of its duties; but mariage, being a relation involving the status of a party to it, can be dissolved by the court having jurisdiction of the petitioning party alone, as a citizen of the State. See,

2

Wright . Wright, 24 Mich. 180; Holmes v. Holmes, 4 Lans. 388; Batcheldor v. Batcheldor, 14 N. H. 380; Ditson v. Ditson, 4 R. I. 87; Forrest v. Forrest, 6 Duer, 102; Bishop . Bishop, 30 Penn. St. 412; Hanberry v. Hanberry, 29 Ala. 719; Kruse . Kruse, 25 Mo. 68; Kashaw o. Kashaw, 3 Cal. 312.

Gleason . Gleason, 4 Wis. 64; Manley v. Manley, 3 Pinn. 390; Hubbell v. Hubbell, 3 Wis. 662.