than the judge of the court to exercise its powers. Judges are chosen in such manner as shall be provided by law; and a stipulation by parties that any other person than the judge shall exercise his functions in their case would be nugatory, even though the judge should vacate his seat for the purposes of the hearing.1 Sometimes jurisdiction of the subject-matter will depend upon considerations of locality, either of the thing in dispute or of the parties. At law certain actions are local, and others are transitory. The first can only be tried where the prop- [* 400] erty is which is the subject of the controversy, or in respect to which the controversy has arisen. The United States courts take cognizance of certain causes by reason only of the fact that the parties are residents of different States or countries.2 The question of jurisdiction in these cases is sometimes determined by the common law, and sometimes is matter of statutory regulation. But there is a class of cases in respect to which the courts of the several States of the Union are constantly being called upon to exercise authority, and in which, while the jurisdiction is conceded to rest on considerations of locality, there has not, unfortunately, at all times been entire harmony of decision as to what shall confer jurisdiction. We refer now to suits for divorce from the bonds of matrimony. The courts of one State or country have no general authority to grant divorce, unless for some reason they have control over the particular marriage contract which is sought to be annulled. But what circumstance gives such control? Is it the fact that the marriage was entered into in such country or State? Or that the alleged breach of the marriage bond was within that jurisdiction? Or that the parties resided within it either at the time of the marriage or at the time of the offence? Or that the parties now reside in such State or country, though both marriage and offence may have taken place elsewhere? Or must marriage, offence, and residence, all or any two of them, combine to 1 Winchester v. Ayres, 4 Greene individual may sometimes be treated (Iowa), 104. as void, when he was not suable in that court or in that manner, notwithstanding he may have so submitted himself to the jurisdiction as to be personally bound. See Georgia R. R., &c. v. Harris, 5 Geo. 527; Hinchman v. Town, 10 Mich. 508. 2 See a case where a judgment of a United States court was treated as of no force, because the court had not jurisdiction in respect to the plaintiff. Vose v. Morton, 4 Cush. 27. As to third persons, a judgment against an confer the authority? These are questions which have frequently demanded the thoughtful attention of the courts, who have sought to establish a rule at once sound in principle, and that shall protect as far as possible the rights of the parties, one or the other of whom, unfortunately, under the operation of any rule which can be established, it will frequently be found has been the victim of gross injustice. We conceive the true rule to be that the actual, bona fide residence of either husband or wife within a State will give [* 401] to that * State authority to determine the status of such party, and to pass upon any questions affecting his or her continuance in the marriage relation, irrespective of the locality of the marriage, or of any alleged offence; and that any such court in that State as the legislature may have authorized to take cognizance of the subject may lawfully pass upon such questions, and annul the marriage for any cause allowed by the local law. But if a party goes to a jurisdiction other than that of his domicile for the purpose of procuring a divorce, and has residence there for 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 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 * But to render the jurisdiction of a court effectual in [* 402] any case, it is necessary that the thing in controversy, or occurred, as a ground for a divorce 349; Hollister v. Hollister, 6 Penn. 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. Dorsey v. Dorsey, 7 Watts, St. 449; McDermott's Appeal, 8 W. 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 [* 403] 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 cases also partake of the nature 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.. diction 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 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. “NoUpon the whole subject of juris- tice of some kind is the vital breath 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 [* 404] 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 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 r. 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 Grat. 409; McVeigh v. United States, 11 Wall. 259; 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. |