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4. Suit Against a State by a Citizen of Another State. Upon general principles, a sovereign State cannot be sued, unless by consent.1

The second section of the third article of the national Constitution, however, as originally adopted, rendered the States suable, not only as against each other, but at the suit of citizens of other States, and vested jurisdiction of such cases in the Supreme Court. But, by subsequent amendments of the Constitution, the suing of a State in the courts of the United States is entirely inhibited, except in cases of suits between two or more States. 3 Thus the right of one State to sue another still remains, and the jurisdiction of such suits is exclusive in the Supreme Court, as we have seen in the preceding section of this chapter.

1 Beers v. Alabama, 20 How. 527; Briscoe o. Bank of Kentucky, 11 Pet. 257; Bank of Washington o. Arkan. sas, 20 How. 530.

? Art. XI. of Amendments to the Constitution of the U. S.

* Hollingsworth v. Virginia, 3 Dall. 378.

CHAPTER IV.

INTER-STATE RIGHTS OF SUIT — JURISDICTIONAL REQUISITES.

1. A CONSTITUTIONAL Right, AS WELL AS BY COMITY.
II. PERSONAL JURISDICTION: WHEN NECESSARY.
III. PROCEEDINGS IN REM.
IV. SEALED AND UNSEALED INSTRUMENTS.

V. Non-RESIDENTS PERSONALLY SUABLE IF FOUND AND SERVED.
VI. JURISDICTION OBTAINED BY FRAUD.
VII. FOREIGN CORPORATIONS, EXECUTORS AND ADMINISTRATORS.
VIII. SERVICE ON A MEMBER OF A FIRM AS AGAINST A NON-RESIDENT MEM.

BER THEREOF.

1. A Constitutional Right, as well as by Comity. Not only as matter of comity, which under the unity of our national government may not be withheld, but also in virtue of the 2d section of the 4th article of the Constitution, which declares that “the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States," and which adds to comity an absolute and binding law, the citizens and inhabitants of each State have a right to sue, and are liable to be sued, in the courts of all the States, in all such actions and suits in law and in equity as in their nature come within the sphere of interState jurisdiction. 1

2. Personal Jurisdiction: When Necessary. But to sustain a personal judgment against a defendant, personal jurisdiction must be had, either by appearance or by personal service of process, made within the territorial limits of the State where snit is brought; and non-residence is no objection to such jurisdiction where personal service is thus made.?

Personal Jurisdiction, Is not attainable in the courts of one State against a citizen or resident of another State by personal

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service of process made in such other and different State than the one in which suit is sought to be brought, and a personal judg. ment rendered against a defendant who has not personally appeared, or otherwise submitted to the jurisdiction of the court, and upon whom no other service of process than the above has been made, is null and void; for the processes and laws of a State have no extra-territorial operation or force as against citizens or persons residing in a different State.1 Nor will personal jurisdiction be obtained by publication of notice in newspapers, or other publication of notice against or to such non-resident or absent defendant, so as to justify or sustain a personal judgment against him, but such personal judgment, rendered without other jurisdiction of the person of the defendant than publication, is null and void, as well where rendered as elsewhere, notwithstanding any law of the forum authorizing the same; for such law can have no extra-territorial force to affect the defendant personally outside the jurisdiction of the State wherein the judgment is rendered. 2

3. Proceedings in rem. But proceedings in rem, may, for any just cause, be prosecuted against the property of a non-resident, situated in any State, by proceedings in the courts of the State wherein the property is situated, if so allowed by law, upon such publication of notice, or constructive service, as is the practice of such State, and judgment against the property may be rendered accordingly, when otherwise justified in law, for such property being within the actual jurisdiction of the forum, the power of the State and its courts over the same does not depend upon personal service and jurisdiction of the defendant's person;3 but no personal judgment, in such proceeding, there hav

* Bates v. Chicago, and N. W. R. R. Co., 19 Iowa, 260; Hakes v. Shupe, 27 Iowa, 465 ; Weil v. Lowenthal, 10 Iowa, 575; Ableman v. Booth, 21 How. 506; Piatt o. Oliver, 2 Mclean, 268; Westervelt o. Lewis, Ibid. 511; Lin. coln 0. Tower, Ibid. 473; Kendall 0. U.S., 12 Pet. 526; Herndon v. Ridg. way, 17 How. 424; Griffith v. Frazier, 8 Cr. 9; Freeman on Judgments, SS 564, 566.

· Banta 0. Wood, 32 Iowa, 469; Bates v. Chicago & N. W. R. R. Co.,

19 Iowa, 260, 262; Board of Public Works o. Columbia College, 17 Wall. 521; Griffith 0. Frazier, 8 Cr. 9; Schwinger v. Hickok, 53 N. Y. 280; Bischoff u. Wethered, 9 Wall. 812; Frecman on Judgments, $ 127; Storey's Conf. of Laws, ES 546 and 546a.

3 Darrance o. Preston, 18 Iowa, 396; Banta 0. Wood, 32 Iowa, 469; The Globe, 2 Blatchf. 427; Thomas 0. Southard, 2 Dana, 475.

ing been only such constructive service, will be valid, and no recovery in an action can be had thereon, anywhere. So the same right and liability, of suing and being sued in the circuit courts of the United States, exists between citizens of different States, where the amount in controversy, and citizenship of the parties, or other legal requisites, are shown, which bring the same within the jurisdiction of said court. But to sustain a judgment in personam, personal service must be had, and a citizen of one State cannot be arrested, in any case, on civil process from such circuit court in a different State than that wherein he resides,

4. Sealed and Unsealed Instruments. Interesting questions sometimes arise as to the character in which an instrument made in one State, and sued on in the courts of another, is to be regarded in the forum of the latter State; as, for instance, the question as to whether an instrument is sealed or not, will govern the nature of the action brought thereon.

Thus, in some States a mere scroll is by law given the import and force of an actual seal; in others an actual or real seal is required, as an impression on wax, or other impressible substance; and yet, in others still, seals are abolished entirely.

Now, in an action on such instrunents in the courts of the State where made, no difficulty may arise in relation to their true character, but when sued on in the court of a different State, where the rule of local law as to a seal varies from that where the instrument was made, the question arises at once as to whether the local law, that is the law of the forum, shall prevail, or that of the State wherein the instrument was made, shall govern in giving character to it, as a sealed or an unsealed instrument — for, if a sealed instrument, it is a deed, or writing obligatory, and suit must be in covenant or debut, but if unsealed, then it is but a simple contract, and assumpsit will lie. The Supreme Court of the United States hold that, notwithstanding the general law, the lex loci contractus governs as to the obligation and character of an instrument, when not made performable elsewhere; that nevertheless, without impairing the obligation

· Boswell v. Otis, 9 How. 336; Lin. coln v. Tower, 2 McLean, 473; Warren Manf. Co. v. Etna Ins. Co., 2 Paine,

502; Westervelt v. Lewis, 2 McLean, 511; Banta c. Wood, 32 Iowa, 469.

2 See Revised Statutes of U. S. of 1874, p. 139, $ 739.

of that rule, in enforcing a remedy on it elsewhere, the law of the forum, or place where the suit is brought, prevails, and it is to be treated as sealed or unsealed accordingly as it would be if made in the State where the suit is pending:1

Thus, the law of New York requires an actual seal of wafer or wax," and, if not so sealed, the form of action on an instrument is assumpsit.3 By the law of Wisconsin, it is provided that “any instrument to which the person making the same shall affix any device, by way of seal, shall be adjudged and held to be of the same force and obligation as if it were actually sealed.” In an action in the Circuit Court of the United States for the Southern District of New York, upon an instrument made in Wisconsin, with a view to performance in Wisconsin, as, for instance, a deed of warrantee for Wisconsin lands, suit being brought on the warranty, the action was brought in assumpsit, according to the practice on simple contracts in New York, and it was held that the action was rightfully brought, as to the form thereof, and, the case having gone to the Supreme Court of the United States, that court affirmed the ruling in that respect.4 The Sulpreme Court of the United States, WOODBURY, J., say of the form of action: “It was obliged to be in assumpsit in the State of New York.

We hold this, too, without impairing at all the principle that in deciding on the obligation of the instrument as a contract, and not the remedy on it elsewhere, the law of Wisconsin, as the lex loci contractus, must govern."5

5. Non-residents Personally Suable, if Found and Served. It is no objection to the jurisdiction of a State court over the person

of a defendant, that he resides in a different State, provided personal service be had upon such defendant in the State where the action or suit is brought, and provided the nature of the action or suit, and the subject-matter thereof, be such as is actionable in that jurisdiction, or may therein be enforced. 6 Every citizen or resident of a State or territory is liable to suit, in personam, in every other State and territory wherein he may

* Robinson v. Campbell, 3 Wheat. 198; Bank of Rochester v. Gray, 2 212; Le Roy v. Beard, 8 How. 451; Hill, 228. Meredith o. Hinsdalc, 2 Caines, 362. * Lo Roy v. Beard, 8 How. 451.

> Warren v. Lynch, 5 Jolin. 239. 5 Le Roy v. Beard, 8 How. 464, 465,

8 Andrews o. Herriott, 4 Cow. 508; Robinson v. Campbell, 3 Wheat. 212. Van Santwood o. Sandford, 12 John. 6 Swan v. Smith, 26 Iowa, 87; Free.

man on Judgments, $ 506.

*

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