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HADDOCK V. HADDOCK 
 
 ( 201 U. S. 562. ) 
 Reprinted from Volume 5 
 
 American and English 
 Annotated Cases 
 
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 THOROUGHLY ANNOTATED 
 
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 AND 
 
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 VOLUME V 
 
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 NQRTHPORT, L. I., N. Y 
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Copyright, 1907 
 
 BY 
 
 EDWARD THOMPSON COMPANY 
 All rights reserved 
 
AMERICAN AND ENGLISH 
 ANNOTATED CASES. 
 
 VOLUME V. 
 
 JOHN W. HADDOCK ' 
 
 HARRIET HADDOCK. 
 
 United States Supreme Court — April 12, 1906. 
 201 U. S. 562. 
 
 Appeal and Error — United States 
 Snpreme Court — Divorce Judgment — 
 Questions Revievrable. — The Supreme 
 Court of the United States, in passing upon a 
 writ of error to review the judgment of a 
 state court granting a divorce, will consider 
 federal questions only, and will give no con- 
 sideration whatever .to matters which are 
 solely of state cognizance, such as alleged 
 fraud in contracting the marriage and the 
 subsequent laches of the spouse seeking the 
 divorce. Nor will the Supreme Court con- 
 sider the question whether it was erroneous 
 for the state court to exclude from ^ evidence 
 the record of a foreign divorce, set up as a 
 defense, instead of admitting the record and 
 determining the effect to be given to it. 
 
 Constitutional Iiavr — Divorce — PoTver 
 of State to Regulate — Refusal to 
 Recognize Foreign Divorce. — Every state 
 has full power to determine whether the mar- 
 riage relation of its citizens shall be dissolved, 
 and the exercise of that power by a state, in 
 behalf of one of its citizens, by refusing to 
 recognize the validity of a divorce granted in 
 a foreign state upon constructive service of 
 process, does not violate the full faith and 
 credit clause of the Constitution of the United 
 States. 
 
 Divorce — Constructive Service on 
 Nonresident — Extraterritorial Effect 
 of Decree. — If a suit for divorce is a pro- 
 ceeding in rem, the res is divisible when the 
 plaintiff is domiciled ip the state where the 
 suit is brought and the defendant is domiciled 
 in another state, so that though a divorce 
 
 ' As to the extraterritorial effect of a decree 
 of divorce granted by a foreign cour,t having 
 jurisdiction, see note to Bater v. Bater, 4 
 A. & B. Ann. Gas. 854. 
 
 5 A. & E. Ann. Gas. — 1. 
 
 granted upon constructive service may be valid 
 in the state of the plaintiff's domicil, it has 
 no obligatory extraterritorial force in the state 
 of the defendant's domicil. 
 
 Constitutional Itaiv — Divorce — Con- 
 structive Service on Nonresident — 
 Extraterritorial Effect of Decree. — 
 Where a husband abandons his wife without 
 justifiable cause and removes to another state 
 and acquires a domicil therein, but the wife 
 remains in the matrimonial domicil, her domi- 
 cil continues in that state and does not con- 
 structively follow her husband, and therefore 
 if the husband sues for a divorce in the state 
 of his domicil, and a decree of divorce is 
 rendered upon merely constructive service of 
 process, the, court does not acquire such juris- 
 diction over the wife as entitles the decree to 
 obligatory enforcement in the state of her 
 domicil by virtue of the full faith and credit 
 clause of the Constitution of the United 
 States, though the state in which the decree 
 is rendered may have the power to enforce it 
 within its borders and the state of the wife's 
 domicil may have the power to give the decree 
 such efficacy as it may see fit. 
 
 Error to Suprema Court of state of New 
 York. 
 
 Action for separation. Harriet Haddock, 
 plaintiff, and John W. Haddock, defendant. 
 Judgment for plaintiff. Defendant brings 
 error. The facts are stated in the opinion. 
 
 Abram J. Rose, Wm. H: WilUts, and Al- 
 fred C. Pett4 for plaintiff in errof. ,, 
 
 Benri/ Willis Smith, Wm. T. T^mlinson, 
 and Wm. W. Srtiith for defendant in ,error. 
 
 [564] White, J.--TKeplaintlff"in error 
 will be called the husbajid and the defendant 
 in error the wife. 
 
 The wife, a resident. oi ! the state of New 
 York, sued the husband. 19 that stateiin 1899, 
 and there obtained personal serviijej upon 
 him. The complaint charged that the par- 
 ties had been married in ^few York in 1868, 
 
 '''^\'li 
 '<„, 
 
5 A. & E. ANN. OAS. 
 
 where they both resided and where the wife 
 continued to reside, and it was averred that 
 the husband, immediately following the mar- 
 riage, abandoned the wife, and thereafter 
 failed to support her, and that he was the 
 owner of property. A decree of separation 
 from bed and board and for alimony was 
 prayed. The answer admitted the marriage, 
 but averred that its celebration was pro- 
 cured by the [565] fraud of the wife, and 
 that immediately after the marriage the par- 
 ties, had separated by mutual consent. It 
 was also alleged that during the long period 
 between the celebration, and the bringing of 
 this action the wife had in no manner as- 
 serted her rights and was barred by her 
 laches from doing so. Besides, the answer 
 alleged that the husband had, in 1881, ob- 
 tained in a court of the state of Connecti- 
 cut a divorce which was conclusive. At the 
 trial before a referee the judgment roll in 
 the suit for divorce in Connecticut was 
 offered by the husband and was objected to, 
 first, because the Connecticut court had not 
 obtained jurisdiction .over the person' of the 
 defendant wife, as the notice of the pen- 
 dency of the petition was by publication and 
 she had not appeared in the action; and, 
 second, because the ground upon which the 
 divorce was granted, viz., desertion by the 
 wife, was false. The referee sustained 
 the objections and an exception was noted. 
 The judgment roll in question was then 
 marked for identification and forms a part of 
 the record before us. 
 
 Having thus excluded the proceedings in 
 the Connecticut court, the referee found that 
 the parties were married in New York in 
 1868, that the wife was a resident of the 
 state of New York, that after the marriage 
 the parties never lived together, and shortly 
 thereafter that the husband without justifi- 
 able cause abandoned the wife, and has 
 since neglected to provide for her. The legal 
 conclusion was that the wife was entitled 
 to a separation from bed and board, and ali- 
 mony in the sum of $780 a year from the 
 date of the judgment. The action of the 
 referee was sustained by the Supreme Court 
 of the state of New York, and a judgment 
 for separation and alimony was entered in 
 favor of the wife. This judgment was af- 
 firmed by the Court of Appeals. As by the 
 law of the state of New York, after the af- 
 firmance by the Court of Appeals, the record 
 was remitted to the Supreme Court, this 
 writ of error to that court was prosecuted. 
 
 The federal question is, Did the court be- 
 low y^olate the Constitution of the United 
 ^^Stktes yy ' refusing to give to the [566] de- 
 cree of idiworce ' rendered in the state of Con- 
 necticut the' faith'and credit to which it was 
 entitled^?, 
 
 As pb)e avermehts-, concerning the alleged • 
 fraud in contrai.«tilig' the marriage and the 
 subseqntent laches' of the wife are solely 
 matte-rs of state 'Cognizance, we may not 
 allow them to even indirectly influence pur 
 judgment upon the federal question to which 
 we are confined, -and we, therefore, put these 
 subjects entirely out of view. Moreover, as, 
 
 for the purpose of the federal issue, we are 
 concerned not with the mere form of pro- 
 ceeding by which the federal right, if any, 
 was denied, but alone have power to decide 
 whether such right was denied, we do not 
 inquire whether the New York court should 
 preferably have admitted the record of the 
 Connecticut divorce suit, and, after so ad- 
 mitting it, determine what effect it would 
 give to it, instead of excluding the record and 
 thus refusing to give effect to the judgment. 
 In order to decide whether the refusal of the 
 court to admit in evidence the Connecticut 
 decree denied to that decree the efiicacy to 
 which it was entitled under the full faith 
 and credit clause, we must first examine the 
 judgment roll of the Connecticut cause in 
 order to fix the precise circumstances under 
 which the decree in that cause was rendered. 
 
 Without going into detail, it sufBces to say 
 that on the face of the Connecticut record it 
 appeared that the husband, alleging that he 
 had acquired a domicil in Connecticut, sued 
 the wife in that state as a person whose resi- 
 dence was unknown, but whose last known 
 place of residence was in the state of New 
 York, at a place stated, and charged deser- 
 tion by the wife and fraud on her part in 
 procuring the marriage; and, further, it is 
 shown that no service was made upon the 
 wife except by publication acd by mailing 
 a copy of the petition to her at her last 
 known place of residence in the state of New 
 York. 
 
 With the object of confining our attention 
 to the real question arising from this condi- 
 tion of the Connecticut record, we state at 
 the outset certain legal propositions irrevo- 
 cably concluded by previous decisions of this 
 court, and which are required [567] to be 
 borne in mind in analyzing the ultimate 
 issue to be decided. 
 
 First. The requirement of the Constitu- 
 tion is not that some, but that full, faith 
 and credit shall be given by states to the 
 judicial decrees of other states. That is to 
 say, where a decree rendered in one state is 
 embraced by the full faith and credit clause 
 that constitutional provision commands that 
 the other states shall give to the decree the 
 force and effect to which it was entitled in 
 the state where rendered. Harding v. Hard- 
 ing, 198 U. S. 317, 25 U. S. Sup. Ct. Rep. 
 679. 
 
 Second. Where a personal judgment has 
 been rendered in the courts pf a state against 
 a nonresident merely upon constructive ser- 
 vice, and therefore without acquiring juris- 
 diction over the person of the defendant, 
 such judgment may not be enforced in an- 
 other state in virtue of the full faith and 
 credit clause. Indeed, a personal judgment 
 so rendered is by operation of the due process 
 clause of the Fourteenth Amendment void 
 as against the nonresident even in the state 
 where rendered, and, therefore, such non- 
 resident in virtue of rights granted by the 
 Constitution of the United States may suc- 
 cessfully refsist, even in the state where ren- 
 dered, the enforcement of such a judgment. 
 Pennoyer v. Neff, 95 U. S. 714. The facts in 
 
HADDOCK V. HADDOCK. 
 
 ZOl U. 8. 
 
 that case were these: Neff, who was a resi- 
 dent of a state other than Oregon, owned a 
 tract of land in Oregon. , Mitchell, a resident 
 of Oregon, brought a suit in a court of that 
 state upon a money demand against Neff. 
 The Oregon statutes required, in the case of 
 personal action against a nonresident, a pub- 
 lication of notice calling upon the defendant 
 to appear and defend, and also required the 
 mailing to such defendant at his last known 
 place of residence of a, copy of the summons 
 and complaint. Upon affidavit of the ab- 
 sence of Neff, and that he resided in the state 
 of California, the exact place being unknown, 
 the publication required by the statute was 
 ordered and made, and judgment by default 
 was entered against Neff. Upon this judg- 
 ment execution was issued and real estate 
 of Neff was sold and was ultimately ac- 
 quired by [568] Pennoyer. Neff sued in the 
 Circuit Court of the United States for the 
 district of Oregon to recover the property, 
 and the question presented was the validity 
 in Oregon of the judgment there rendered 
 against Neff. After the most elaborate con- 
 sideration it was expressly decided that the 
 judgment rendered in Oregon under the cir- 
 cumstances stated was void for want of 
 jurisdiction and was repugnant to the due 
 process clause of the Constitution of the 
 United States. The ruling was based on the 
 proposition that a court of one state could 
 not acquire jurisdiction to render a personal 
 judgment against a nonresident who did not 
 appear by the mere publication of a. sum- 
 mons, and that the want of power to acquire 
 such jurisdiction by publication could not 
 be aided by the fact that under the statutes 
 of the state in which the suit against the 
 nonresident was brought the sending of a 
 copy of the summons and complaint to the 
 post-office address in another state of the 
 defendant was required and complied with. 
 The court said (p. 727) : 
 
 " Process from the tribunals of one state 
 cannot run into another state, and summon 
 parties there domiciled to leave its terri- 
 tory and respond to proceedings against 
 them. Publication of process or notice 
 within the state where the tribunal sits can- 
 not create any greater obligation upon the 
 nonresident to appear. Process sent to him 
 out of the state, and process published 
 within it, are equally unavailing in proceed- 
 ings to establish his personal liability." 
 
 And the doctrine thus stated but expressed 
 a general principle expounded in previous 
 decisions. Bischoff v. Wethered, 9 Wall. (U. 
 S.) 812. In that case, speaking of a money 
 judgment recovered in the Common Pleas of 
 Westminster Hall, England, upon personal 
 notice served in the city of Baltimore, Mr. 
 Justice Bradley, speaking for the court, 
 said (p. 814) : 
 
 "It is enough to say [of this proceeding] 
 that it was wholly without jurisdiction of 
 the person, and whatever validity it may 
 have in England, by virtue of statute law 
 against property of the defendant there sit- 
 uate, it can have no validity here, even of a 
 prima facie character. It is simply null." 
 
 [569] Tliird. The principles, however, 
 stated in the previous proposition are con- 
 trolling only as to judgments in personam 
 and do not relate to proceedings in rem. 
 That is to say, in consequence of the author- 
 ity which government possesses over things 
 within its borders there is jurisdiction in a 
 court of a state by a proceeding in rem, 
 after the giving of reasonable opportunity 
 to the owner to defend, to affect things 
 within the jurisdiction of the court, even 
 although jurisdiction is not directly acquired 
 over the person of the owner of the thing. 
 Pennoyer v. Neff, supra. 
 
 Fourth. The general rule stated in the 
 second proposition is, moreover, limited by 
 the inherent power which all governments 
 must possess over the marriage relation, its 
 formation and dissolution, as regards their 
 own citizens. Prom this exception it resvilts 
 that where a court of one state, conformably 
 to the laws of such state, or the state through 
 its legislative department, has acted con- 
 cerning the dissolution of the marriage tie, 
 as to a citizen of that state, such action 
 is binding in that state as to such citizen, 
 and the validity of the judgment may not 
 therein be questioned on the ground that the 
 action of the state in dealing with its own 
 citizen concerning the marriage relation was 
 repugnant to the due process clause of the 
 Constitution. Maynard v. Hill, 125 U. S. 
 190, 8 U. S. Sup. Ct. Rep. 723. In that 
 case the facts were these : Maynard was 
 married in Vermont, and the husband and 
 wife removed to Ohio, from whence Maynard 
 left his wife and family and went to Cali- 
 fornia. Subsequently he acquired a domicil 
 in the territory of Washington. Being there 
 so domiciled, an act of the legislature of the 
 territory was passed granting a divorce to 
 the husband. Maynard continued to reside 
 in Washington, and there remarried and 
 died. The children of the former wife, 
 clniming in right of their mother, sued in a 
 court of the territory of Washington to re- 
 cover real estate situated in the territory, 
 and one of the issues for decision was the 
 validity of the legislative divorce granted to 
 the father. The statute was assailed as in- 
 valid, on the ground that Mrs. [570] May- 
 nard had no notice and that she was not a 
 resident of the territory when the act was 
 passed. From a decree of the Supreme Court 
 of the territory adverse to their claim the 
 children brought the case to this court. The 
 power of the territorial legislature, in the 
 absence of restrictions in the organic act, 
 to grant a divorce to a citizen of the terri- 
 tory was, however, upheld, in view of the 
 nature and extent of the authority which 
 government possessed over the marriage rela- 
 tion. It was therefore decided that -the 
 courts of the territory committed no error in 
 giving effect within the territory to the di- 
 vorce in question. And as a corollary of the 
 recognized power of a government thus to 
 deal with its own citizen by a decree which 
 would be operative within its own borders, 
 irrespective of any extraterritorial efficacy, 
 it follows that the right of another sover- 
 
5 A. & E. ANN. CAS. 
 
 eignty exists, under principles of comity, to 
 give to a decree so rendered such efficacy 
 as to tnat government may seem to be justi- 
 fied by its conceptions of duty and public 
 policy. 
 
 Fifth. It is no longer open to question that 
 where husband and wife are domiciled in a 
 state there exists jurisdiction in such state, 
 for good cause, to enter a decree of divorce 
 which will be entitled to enforcement in an- 
 other state by virtue of the full faith and 
 credit clause. It has, moreover, been decided 
 that where a bona fide domicil has. been ac- 
 quired in a state by either of the parties to 
 a marriage, and a suit is brought by the 
 domiciled party in such state for a divorce, 
 the courts of that state, if they acquire per- 
 sonal jurisdiction also of the other party, 
 have authority to enter a, decree of divorce, 
 entitled to be enforced in every state by the 
 full faith and credit clause. CheeVer v. Wil- 
 son, 9 Wall. (U. S.) 108. 
 
 Sixth. Where the domicil of matrimony 
 was in a particular state, and the husband 
 abandons his wife and goes into another state 
 in order to avoid his marital obligations, 
 such other state to which the husband has 
 wrongfully fled does not, in the nature of 
 things, become a new domicil of matrimony, 
 and, therefore, is not to be treated as the 
 actual or constructive [571] domicil of the 
 wife; hence, the place where the wife was 
 domiciled when so abandoned constitutes her 
 legal domicil until a new actual domicil 
 be by her elsewhere acquired. This was 
 clearly expressed in Barber v. Barber, 21 
 How. (U. S.) 582, where it was said (p. 
 595): 
 
 " The general rule is, that a voluntary 
 separation will not give to the wife a diflfer- 
 ent domiciliation in law from that of her 
 husband. But if the husband, as is the fact 
 in this case, abandons their domicil and his 
 wife, to get' rid of all those conjugal obliga- 
 tions which the marriage relation imposes 
 upon . him, neither giving to her the neces- 
 saries nor the comforts suitable to their con- 
 dition and his fortune, and relinquishes al- 
 together his marital control and protection, 
 he yields up that power and authority 
 over her which alone makes his domicil 
 hers. * * *" 
 
 And the same doctrine was expressly up- 
 held in Cheever v. Wilson, supra, where the 
 -court said (9 Wall. (U. S.) 123): 
 
 " It is insisted that Cheever never resided 
 in Indiana; that the domicil of the husband 
 is the wife's, and that she cannot have a dif- 
 ferent one from his. The converse of the 
 latter proposition is so well settled that it 
 would be idle to discuss it. The rule is that 
 she may acquire a separate domicil whenever 
 it is necessary or proper that she should do 
 so. The right springs from the necessity of 
 its exercise, and endures as long as the neces- 
 sity continues." 
 
 Seventh. So also it is settled that where 
 the domicil of a husband is in a particular 
 state, and that state is also the domicil of 
 matrimony, the courts of such state having 
 jurisdiction over the husband may, in virtue 
 
 of the duty of the wife to be at the matri- 
 monial domicil, disregard an unjustifiable 
 absence therefrom, and treat the wife as hav- 
 ing her domicil in the state of the matri- 
 monial domicil for the purpose of the disso- 
 lution of the marriage, and as a result have 
 power to render a judgment dissolving the 
 marriage which will be binding upon both 
 parties, and will be entitled to recognition in 
 all other states by virtue of the [572] full 
 faith and credit clause. Atherton v. Ather- 
 ton, 181 U. S. 155, 21 U. S. Sup. Gt. Rep. 
 544. 
 
 Coming to apply these settled propositions 
 to the case before us three things are beyond 
 dispute: a. In view of the authority which 
 government possesses over the marriage re- 
 lation, no question can arise on this record 
 concerning the right of the state of Connecti- 
 cut within its borders to give effect to the 
 decree of divorce rendered in favor of the 
 husband by the courts of Connecticut, he 
 being at the time when the decree was ren- 
 dered domiciled in that state. 6. As New 
 York was the domicil of the wife and the 
 domicil of matrimony, from which the hus- 
 band fled in disregard of his duty, it clearly 
 results from the sixth proposition that the 
 domicil of the wife continued in New York, 
 c. As, then, there can be no question that the 
 wife was not constructively present in Con- 
 necticut by virtue of a matrimonial domicil 
 in that state, and was not there individually 
 domiciled and did not appear in the divorce 
 cause, and was only constructively served 
 with notice of the pendency of that action, 
 it is apparent that the Connecticut court did 
 not acquire jurisdiction over the wife within 
 the fifth and seventh propositions; that is, 
 did not acquire such jurisdiction by virtue 
 of the domicil of the wife within the state 
 or as the result of personal service upon her 
 within its borders. 
 
 These subjects being thus eliminated, the 
 case reduces itself to this: whether the 
 Connecticut court, in virtue alone of the 
 domicil of the husband in that state, had 
 jurisdiction to render a decree against the 
 wife under the circumstances stated, which 
 was entitled to be enforced in other states 
 in and by virtue of the full faith and credit 
 clause of the Constitution. In other words, 
 the final question is whether to enforce in 
 another jurisdiction the Connecticut decree 
 would not be to enforce in one state a per- 
 sonal judgment rendered in another state 
 against a defendant over whom the court of 
 the state rendering the judgment had not ac- 
 quired jurisdiction. Otherwise stated, the 
 question is this: Is a proceeding for divorce 
 [573] of such an exceptional character as 
 not to come within the rule limiting the au- 
 thority of a state to persons within its juris- 
 diction, but on the contrary, because of the 
 power which government may exercise over 
 the marriage relation, constitutes an excep- 
 tion to that rule, and is therefore embraced 
 either within the letter or spirit of the doc- 
 trines stated in the third and fourth proposi- 
 tions ? 
 
 Before reviewing the authorities relied on 
 
HADDOCK V. HADDOCK. 
 
 2111 U. S. 56 
 
 to establish that a divorce proceeding is oi 
 the exceptional nature indicated, we propose 
 first to consider the reasons advanced to sus- 
 tain the contention. In doing so, however, 
 it must always be borne in mind that it is 
 elementary that where the full faith and 
 credit clause of the Constitution is invoked 
 to compel the enforcement in one state of a 
 decree rendered in another, the question of 
 the jurisdiction of the court by which the 
 decree was rendered is open to inquiry. And 
 if there was no jurisdiction, either of the 
 subject-matter or of the person of the de- 
 fendant, the courts of another state are not 
 required, by virtue of the full faith and 
 credit clause of the Constitution, to enforce 
 such decree. National Exch. Bank v. Wiley, 
 195 U. S. 257, 269, 25 U. S. Sup. Ct. Kep. 
 70, and cases cited. 
 
 I. The wide scope of the authority which 
 government possesses over the contract of 
 marriage and its dissolution is the basis 
 upon which it is argued that the domicil 
 within one state of one party to the marriage 
 gives to such a state jurisdiction to decree 
 a dissolution of the marriage tie which will 
 be obligatory in all the other states by force 
 of the full faith and credit clause of the 
 Constitution. But the deduction is destruc- 
 tive of the premises upon which it rests. 
 This becomes clear when it is perceived th^ 
 if one government, because of its authority 
 over its own citizens, has the right to dissolve 
 the marriage tie as to the citizen of another 
 jurisdiction, it must follow that no govern- 
 ment possesses as to its own citizens power 
 over the marriage relation and its dissolu- 
 tion. For if it be that one government in 
 virtue of its authority over marriage may 
 dissolve the tie as to citizens of another 
 [574] government, other governments would 
 have a similar power, and hence the right 
 of every government as to its own citizens 
 might be rendered nugatory by the exercise 
 of the power which every other government 
 possessed. To concretely illustrate: If the 
 fact be that where persons are married in 
 the state of New York either of the par- 
 ties to the marriage may, in violation of the 
 marital obligations, desert the other and go 
 into the state of Connecticut, there acquiring 
 a domicil, and procure a dissolution of the 
 marriage which would be binding in the 
 state of New York as to the party to the 
 marriage there domiciled, it would follow 
 that the power of the state of New York as 
 to the dissolution of the marriage as to its 
 domiciled citizen would be of no practical 
 avail. And conversely the like result would 
 follow if the marriage had been celebrated 
 in Connecticut and desertion had been from 
 that state to New York, and consequently 
 the decree of divorce had been rendered in 
 New York. Even a superficial analysis will 
 make this clear. Under the rule contended 
 for it would follow that the states whose 
 laws were the most lax as to length of resi- 
 dence required for domicil, as to causes for • 
 divorce, and to speed of procedure concern- 
 ing divorce, would in effect dominate all 
 the other states. In other words, any per- 
 
 son who was married in one state and who 
 wished to violate the marital obligations 
 would be able, by following the lines of least 
 resistance, to go into the state whose laws 
 were the most lax, and there avail of them 
 for the purpose of the severance of the mar- 
 riage tie and the destruction of the rights 
 of the other party to the marriage contract, 
 to the overthrow of the laws and public pol- 
 icy of the other states. Thus the argument 
 comes necessarily to this, that to preserve 
 the lawful authority of all the states over 
 marriage it is essential to decide that all the 
 states have such authority only at the suffer- 
 ance of, the other states. And the considera- 
 tions just stated serve to dispose of the 
 argument that the contention relied on finds 
 support in the ruling made in MajTiard v. 
 Hill, referred to in the fourth .proposition, 
 which was at the outset stated. For in that 
 case [575] the sole question was the effect 
 within the territory of Washington of a legis- 
 lative divorce granted in the territory to a 
 citizen thereof. The upholding of the di- 
 vorce within the territory was, therefore, but 
 a, recognition of the power of the territorial 
 government, in virtue of its authority over 
 marriage, to deal with a person domiciled 
 within its jurisdiction. The case, therefore, 
 did not concern the extraterritorial efficacy 
 of the legislative divorce. In other words, 
 whilst the ruling recognized the ample 
 powers which government possesses over mar- 
 riage as to one within its jurisdiction, it did 
 not purport to hold that such ample powers 
 might be exercised and enforced by virtue 
 'of the Constitution of the United States in 
 another jurisdiction as to citizens of other 
 states to whom the Jurisdiction of the terri- 
 tory did not extend. 
 
 The anomalous result which it is therefore 
 apparent would arise from maintaining the 
 proposition contended for is made .more 
 manifest by considering the instrument from 
 which such result would be produced, that 
 is, the full faith and credit clause of the 
 Constitution. No one denies that the states, 
 at the time of the adoption of the Constitu- 
 tion, possessed full power over the subject 
 of marriage and divorce. No one, moreover, 
 can deny that, prior to the adoption of the 
 Constitution, the extent to which the states 
 would recognize a divorce obtained in a for- 
 eign jurisdiction depended upon their con- 
 ceptions of duty and comity. Besides, it must 
 be conceded that the Constitution delegated 
 no authority to the government of the United 
 States on the subject of marriage and di- 
 vorce. Yet, if the proposition be maintained, 
 it would follow that the destruction of the 
 power of the states over the dissolution of 
 marriage, as to their own citizens, would be 
 brought about by the operation of the full 
 faith and credit clause of the Constitution. 
 That is to say, it would come to pass that, 
 ' although the Constitution of the United 
 States does not interfere with the authority 
 of the states over marriage, nevertheless the 
 full faith and credit clause of that instru- 
 ment destroyed the authority of the states 
 over the marriage relation. [576] And as 
 
5 A. & E. ANN. CAS. 
 
 the government of the United States has no 
 delegated authority on the subject, that gov- 
 ernment would be powerless to prevent the 
 evil thus brought about by the full faith and 
 credit clause. Thus neither the states nor 
 the national government would be able to 
 exert that authority over the marriage tie 
 possessed by every other civilized government. 
 Yet more remarkable would be such result 
 when it is borne in mind that, when the Con- 
 stitution was adopted, nowhere, either in the 
 mother country or on the continent of Europe, 
 either in adjudged cases or in the treatises 
 of authoritative writers, had the theory ever 
 been upheld or been taught or even suggested 
 that one government, solely because of the 
 domicil within its borders of one of the parties 
 to a marriage, had authority, without the 
 actual or constructive presence of the other, 
 to exert its authority by a dissolution of the 
 marriage tie, which exertion of power it would 
 be the duty of other states to respect as to 
 those subject to their jurisdiction. 
 
 II. It is urged that the suit for divorce was 
 a proceeding in rem, and, therefore, the Con- 
 necticut court had complete jurisdiction to 
 enter a decree as to the res, entitled to be 
 enforced in the state of New York. But here 
 again the argument is contradictory. It 
 rests upon the theory that jurisdiction in Con- 
 necticut depended upon the domicil of the 
 person there suing and yet attributes to the 
 decree resting upon the domicil of one of the 
 parties alone a force and effect based upon 
 the theory that a thing within the jurisdiction 
 of Connecticut was the subject-matter of the 
 controversy. But putting this contradiction 
 aside, what, may we ask, was the res in Con- 
 necticut? Certainly it cannot in reason be 
 said that it was the cause of action or the 
 mere presence of the person of the plaintiff 
 within the jurisdiction. The only possible 
 theory, then, upon which the proposition pro- 
 ceeds must be that the res in Connecticut, 
 from which the jurisdiction is assumed to 
 have arisen, was the marriage relation. But 
 as the marriage was celebrated in New York 
 between citizens [577] of that state, it must 
 be admitted, under the hypothesis stated, that 
 before the husband deserted the wife in New 
 York, the res was in New York and not in 
 Connecticut. As the husband, after wrong- 
 fully abandoning the wife in New York, never 
 established a matrimonial domicil in Connec- 
 ticut, it cannot be said that he took with him 
 the marital relation from which he fled to 
 Connecticut. Concedins, however, that he 
 took with him to Connecticut so much of the 
 marital relation as concerned his individual 
 status, it cannot in reason be said that he did 
 not leave in New York so much of the relation 
 as nert-^i^ed to the status of the wife. From 
 any point of view, then, under the proposition 
 referred to, if the marriage relation be treated 
 as the res, it follows that it was divisihlp. nnd 
 therefore there was a res in the state of New 
 York and one in the state of Connecticut. 
 Thus con=;idpred. it is clear that the power of 
 one state did not extend to affecting the thing 
 situated in another stsite. As illustrating 
 this conception, we notice the case of Missis- 
 
 sippi, etc., R. Co. V. Ward, 2 Black (U. S.) 
 485. The facts in that case were these: A bill 
 was filed in a District Court of the United 
 States for the district of Iowa to abate a 
 nuisance alleged to have been occasioned by a 
 bridge across the Mississippi river dividing 
 the states of Illinois and Iowa. Under the 
 assumption that the nuisance was occasioned 
 by the operation of the bridge on the Illinois 
 side, the court, after pointing out that the 
 United States Circuit Court for the district 
 of Iowa exercised the same jurisdiction that 
 a, state court of Iowa could exercise and no 
 more, said (p. 494) : 
 
 " The District Court had no power over 
 the local object -inflicting the injury; nor any 
 jurisdiction to inquire of the facts, whether 
 damage had been sustained, or how much. 
 These facts are beyond the court's jurisdiction 
 and powers of inquiry, and outside of the 
 case." 
 
 Nor has the conclusive force of the view 
 which we have stated been met by the sugges- 
 tion that the res was indivisible, and there- 
 fore was wholly in Connecticut and wholly in 
 New York, [578] for this amounts but to 
 saying that the same thing can be at one and 
 the same time in different places. Further, 
 the reasoning above expressed disposes of the 
 contention that, as the suit in Connecticut in- 
 volved the status of the husband, therefore 
 the courts of that state had the power to 
 determine the status of the nonresident wife 
 by a decree which had obligatory force out- 
 side of the state of Connecticut. Here, again, 
 the argument comes to this, that, because the 
 state of Connecticut had jurisdiction to fix 
 the status of one domiciled within its borders, 
 that state also had the authority to oust the 
 state of New York of the power to fix the 
 status of a person who was undeniably sub- 
 ject to the jurisdiction of that state. 
 
 III. It is urged that whilst marriage is in 
 one aspect a contract, it is nevertheless a con- 
 tract in which society is deeply interested, 
 and, therefore, government must have the 
 power to determine whether a marriage exists 
 or to dissolve it, and hence the Connecticut 
 court had jurisdiction of the relation and the 
 right to dissolve it, not only as to its own 
 citizen but as to a citizen of New York who 
 was not subject to the jurisdiction of the 
 state of Connecticut. The proposition in- 
 volves in another form of statement the non 
 sequitur which we have previously pointed 
 out; that is, that, because government pos- 
 sesses power over marriage, therefore the 
 existence of that power must be rendered 
 unavailing. 
 
 Nor is the contention aided by the proposi- 
 tion that because it is impossible to conceive 
 of the dissolution of the marriage as to one of 
 the parties in one jurisdiction without at the 
 same time saying that the marriage is dis- 
 , solved as to both in every other jurisdiction, 
 therefore the Connecticut decree should have 
 obligatory effect in New York as to the citizen 
 of that state. For, again,- by a change of 
 form of statement, the same contention which 
 we have disposed of is reiterated. Besides, 
 the proposition presupposes that because, iri 
 
HADDOCK V. HADDOCK. 
 
 201 V. 8. 562. 
 
 the exercise of its power over its own citizens, 
 a state may determine to dissolve the mar- 
 riage tie by a decree which is efficacious 
 [579] within its borders, therefore such de- 
 cree is in all cases binding in every other 
 jurisdiction. As we have pointed out at the 
 outset, it does not follow that a state may 
 not exert its power as to one within its juris- 
 diction simply because such exercise of 
 authority may not be extended beyond its 
 borders into the jurisdiction and authority of 
 another state. Thq distinction was clearly 
 pointed out in Blackinton v. Blackinton, 141 
 Mass. 432, 5 N. E. Rep. 830. In that ease the 
 parties were married and lived in Massa- 
 chusetts. The husband abandoned the wife 
 without cause and became domiciled in New 
 York. The wife remained at the matrimonial 
 domicil in Massachusetts and instituted a 
 proceeding to prohibit her husband from im- 
 posing any restraint upon her personal liberty 
 and for separate maintenance. Service was 
 made upon the husband in New York. The 
 court, recognizing fully that under the cir- 
 cumstances disclosed the domicil of the hus- 
 band was not the domicil of the wife, con- 
 cluded that, under the statutes of Massachu- 
 setts, it had authority to grant the relief 
 prayed, and was then brought to determine 
 whether the decree ought to be made, in view 
 of the fact that such decree might not have 
 extraterritorial force. But this circumstance 
 was held not to be controlling and the decree 
 was awarded. The same doctrine was clearly 
 expounded by the privy council, in an opinion 
 delivered by Lord Watson, in the divorce case 
 of Le Mesurier v. Le Mesurier, (1895) A. C. 
 517, where it was said (p. 527) : 
 
 " When the jurisdiction of the court is ex- 
 ercised according to the rules of international 
 law, as in the case where the parties have 
 their domicil within its forum, its decree dis- 
 solving their marriage ought to be respected 
 by the tribunals of every civilized country. 
 * * * On the other hand, a. decree of divorce 
 a vi/noulo, pronounced by a court whose juris- 
 diction is solely derived from some rule of 
 municipal law peculiar to its forum, cannot, 
 when it trenches upon the interests of any 
 other country to whose tribunals the spouses 
 were amenable, claim extraterritorial author- 
 ity." 
 
 IV. The contention that if the power of one 
 state to decree [580] a dissolution of a mar- 
 riage which would be compulsory upon the 
 other state be limited to cases where both 
 parties are subject to the jurisdiction, the 
 right to obtain a divorce could be so ham- 
 pered and restricted as to be in effect im- 
 possible of exercise, is but to insist that in 
 order to favor the dissolution of marriage and 
 to cause its permanency to depend upon the 
 mere caprice or wrong of the parties, there 
 should not be applied to the right to' obtain 
 a divorce those fundamental principles which 
 safeguard the exercise of the simplest rights. 
 In other words, the argument but reproduces 
 the fallacy already exposed, which is, that one 
 state must be endowed with the attribute of 
 destroying the authority of all the others eon^ 
 corning the dissolution of marriage in order 
 
 to render such dissolution easy of procure- 
 ment. But even if the true and controlling 
 principles be for a moment put aside and mere 
 considerations of inconvenience be looked at, 
 it would follow that the preponderance of in- 
 convenience would be against the contention 
 that a state should have the power to exert 
 its authority concerning the dissolution of 
 marriage as to those not amenable to its ju- 
 risdiction. By the application of that rule 
 each state is given the poycer of overshadow- 
 ing the authority of all the other states, thus 
 causing the marriage tie to be less protected 
 than any other civil obligation, and this to 
 be accomplished by destroying individual 
 rights without a hearing and by tribunals 
 having no jurisdiction. Further, the admis- 
 sion that jurisdiction in the courts of one 
 state over one party alone was the test of the 
 right to dissolve the marriage tie as to the 
 other party although domiciled in another 
 state, would at once render such test impos- 
 sible of general application. In other words, 
 the test, if admitted, would destroy itself. 
 This follows, since, if that test were the rule, 
 each party to the marriage in one state would 
 have a right to acquire a domicil in a differ- 
 ent state and there institute proceedings for 
 divorce. It would hence necessarily arise 
 that domicil would be no longer the determi- 
 native criterion; but the mere race of dili- 
 gence between the parties in seeking different 
 [581] forums in other states, or the celerity 
 by which in such states judgments of divorce 
 might be procured, would have to be consid- 
 ered in order to decide which forum was con- 
 trolling. 
 
 On the other hand, the denial of the power 
 to enforce in another state a decree of divorce 
 rendered against a person who was not sub- 
 ject to the jurisdiction of the state in which 
 the decree was rendered obviates all the con- 
 tradictions and inconveniences which are 
 above indicated. It leaves uncurtailed the 
 legitimate power of all the states over a sub- 
 ject peculiarly within their authority, and 
 thus not only enables them to maintain their 
 public policy but also to protect the individ- 
 ual rights of their citizens. It does not de- 
 prive a state of the power to render a decree 
 of divorce susceptible of being enforced within 
 its borders as to the person within the juris- 
 diction, and does not debar other states from 
 giving such effect to a judgment of that char- 
 acter as they may elect to do under mere 
 principles of state comity. It causes the full 
 faith and credit clause of the Constitution to 
 operate upon decrees of divorce in the re- 
 spective states just as that clause operates 
 upon other rights ; that is, it compels all the 
 states to recognize and enforce a judgment 
 of divorce rendered in other states where both 
 parties were subject to the jurisdiction of the 
 state in which the decree was rendered, and it 
 enables the states rendering such decrees to 
 take into view for the purpose of the exercise 
 of their authority the existence of a matri- 
 monial domicil from which the presence of a 
 party not physically present within the bor- 
 ders of a state may be constructively found to 
 exist. 
 
S A. A; E. ANN. CAS. 
 
 Having tbuK diipasMl ci tba reasoning ad- 
 vanced to sustain tb« assertion tnat th« 
 courts of the state of New York ware bound 
 by the fuil faith and credit clause to give full 
 effect to the Connecticut decree, we are 
 brought to consider the authorities relied 
 upon to support that proposition. 
 
 Whilst the continental and English author- 
 ities are not alluded to in the argument, it 
 may be well, in the most summary way, to 
 refer to them as means of illustrating the 
 [582] question for consideration. The ex- 
 tent of the power which independent sov- 
 ereignties exercised over the dissolution of 
 the marriage tie, as to their own citizens, 
 gave rise, in the nature of things, to contro- 
 versies concerning the extraterritorial effect 
 to be given to a, dissolution of such tie when 
 made between citizens of one country by 
 judicial tribunals of another country in which 
 such citizens had become domiciled. We do 
 not deem it essential, however, to consider 
 the conflicting theories and divergent rules of 
 public policy which were thus engendered. 
 We are relieved of the necessity of entering 
 upon such an inquiry, since it cannot be 
 doubted that neither the practice nor the 
 theories controlling in the countries on the 
 continent lend the slightest sanction to the 
 contention that a government, simply because 
 one of the parties to a marriage was domiciled 
 within its borders, where no matrimonial 
 domicil ever existed, had power to render a 
 decree dissolving a marriage which on prin- 
 ciples of international law was entitled to 
 obligatory extraterritorial effect as to the 
 other party to the marriage, a citizen of an- 
 other country. 1 Wharton, Conf. Laws (3d 
 ed.) 441, § 209, and notes. 
 
 It cannot be doubted, also, that the courts 
 of England decline to treat a foreign decree 
 of divorce as having obligatory extraterri- 
 torial force when both narties to the marriage 
 were not subject to the jurisdiction of the 
 court which rendered the decree. Shaw v. 
 Gould, L. R. 3 H. L. 55; Harvey v. Farnie, 
 8 App. Cas. 43'. And, although it has been 
 suggested in opinions of Englisn judges 
 treating of divorce questions that exceptional 
 c-ses might arise which perhaps would justify 
 a relaxation of the rigor of the presumption 
 that the domicil of the husband was- the 
 domicil of the wife, per Lords Eldon and 
 Redesdale, in Tovey v. Lindsay, 1 Dow 133, 
 140; per Lord Westbury, in Pitt v. Pitt, 4 
 Macq. H. L. 627, 640; per Brett, L. J., in 
 Xiboyet v. Niboyet, 4 P. D. 1, 14; Briggs v. 
 Briggs, 5 P. D. 163, 165; and per James and 
 Cotton, L.JJ., in Harvey v. Farnie, 6 P. D. 
 47, 49, the courts of England, in cases where 
 the jurisdiction was dependent upon domicil, 
 have enforced [383] the presumption and 
 treated the wife as being within the jurisdic- 
 tion where the husband was legally domiciled. 
 But this conception was not a departure from 
 the principle uniformly maintained, that, 
 internationally considered, jurisdiction over 
 both parties to a marriage was essential to 
 the exercise of power to decree a divorce, but 
 was simply a means of determining by a legal 
 presumption whether both parties were within 
 
 the jurisdiction. Of course tba rig«r »f th« 
 English rule as to the domicil of th* husband 
 being the domicil of the wife is not eon- 
 trolling in this court, in view of the decisions 
 to which we have previously referred, recog- 
 nizing the right of the wife, for the fault of 
 the husband, to acquire a separate domicil. 
 Barber v. Barber, 21 How. (U. S.) 582; 
 Cheever v. Wilson, 9 Wall. (U. S.) 108; Ath- 
 erton v. Atherton, 181 U. S. 155, 21 U. S. Sup. 
 Ct. Rep. 544. 
 
 And even in Scotland, where residence, as 
 distinguished from domicil, was deemed to 
 authorize the exercise of jurisdiction to grant 
 divorces, it was invariably recognized that the 
 presence within the jurisdiction of both 
 parties to the marriage was essential to 
 authorize a decree in favor of the complain- 
 ant. 1 Wharton, Conf. Laws, § 215, p. 447; 
 per Lord Westbury, in Shaw v. Gould, L. R. 
 3 H. L. 88. 
 
 As respects the decisions of this court. We 
 at once treat as inapposite,/ and therefore un- 
 necessary to be here specially reviewed, those 
 holding (a) that where the domicil of a plain- 
 tiff in a divorce cause is in the state where 
 the suit was brought, and the defendant ap- 
 pears and defends, as both parties are before 
 the court, there is power to render a decree of 
 divorce which will be entitled in other states 
 to recognition under the full faith and credit 
 clause, Gheever v. Wilson, supra; (6) that 
 as distinguished from legal domicil, mere resi- 
 dence within a particular state of the plaintiff 
 in a divorce cause brought in a court of such 
 state is not sufficient to confer jurisdiction 
 upon such court to dissolve the marriage re- 
 lation existing between the plaintiff and a 
 nonresident defendant, Andrews v. Andrews, 
 188 U. S. 14, 23 U. S. Sup. Ct. Rep. 237; 
 Streitwolf v. Streitwolf, 181 U. S. 179, 21 U. 
 S. Sup. Ct. Rep. 553; Bell v. Bell, 181 U. S. 
 175, 21 U. S. Sup. Ct. Rep. 551. This brings 
 us to again consider [584] a case heretofore 
 referred to, principally relied upon as sustain- 
 ing the contention that the domicil of one 
 party aldne is sufficient to confer jurisdiction 
 upon a judicial tribunal to render a decree of 
 divorce having extraterritorial effect, viz., 
 Atherton v. Atherton, 181 U. S. 155, 21 U. S. 
 Sup. Ct. Rep. 544. The decision in that case, 
 however, as we have previously said, was ex- 
 pressly placed upon the ground of matri- 
 monial domicil. This is apparent from the 
 following passage, which we excerpt from the 
 opinion, at page 171: 
 
 " This case does not involve Hie validity 
 of a divorce granted, on constructive service, 
 by the court of a state in which only one of 
 the parties ever had a domicil; nor the ques- 
 tion _ to what extent the good faith of the 
 domicil may be afterwards inquired into. In 
 this case the divorce in Kentucky was by the 
 court of the state which had always been the 
 undoubted domicil of the husband, and which 
 was the only matrimonial domicil of the hus- 
 band and wife. The single question to be de- 
 cided is the validity of that divorce, granted 
 after such notice had been given as waa re- 
 quired by the statutes of Kentucky." 
 
 The contention, therefore, that the reason- 
 
HADDOCK V. HADDOCK. 
 201 V. S. 562. 
 
 ing of - the opinion demonstrates that the 
 domi«Ll of eu« of the parties alone was con- 
 templated as being; sufficient to found juris- 
 diction, but insists that the case decided a 
 proposition which was excluded in unmis- 
 takable language. But, moreover, it is, clear, 
 when the facts which were involved in the 
 Atherton case are taken into view, that the 
 case could not have been decided merely 
 upon the ground of '^the domicil of one of the 
 parties, becalise that consideration alone 
 would have afforded no solution of the prob- 
 lem which the case presented. The salient 
 facts were these: The husband lived in Ken- 
 tucky, married a citizen of New York, and 
 the married couple took up their domicil at 
 the home of the husband in Kentucky, where 
 they continued to reside and wh^re children 
 were born to them. The wife left the matri- 
 monial domicil and went to New York. The 
 husband sued her in Kentucky for a divorce. 
 Before the [585] Kentucky suit merged into 
 a decree the wife, having a residence in New 
 York suflScient under ordinary circumstances 
 to constitute a domicil in that state, sued the 
 husband in the courts of New York for a 
 limited divorce. Thus the two suits, one by 
 the husband against the wife and the other 
 by the wife against the husband, were pend- 
 ing in the respective states at the same time. 
 The husband obtained a decree in the Ken- 
 tucky suit before the suit of the wife had 
 been determined, and pleaded such decree in 
 the suit brought by the wife in New York. 
 The New York court, however, refused to 
 recognize the Kentucky decree, and the case 
 came here, and this court decided that the 
 courts of New York were bound to give effect 
 to the Kentucky decree by virtue of the full 
 faith and credit clause. Under these condi- 
 tions it is clear that the case could not have 
 been disposed of on the mere ground of the 
 individual domicil of the parties, since upon 
 that hypothesis, even if the efficacy of the 
 individual domicil had been admitted, no solu- 
 tion would have been thereby afforded of the 
 problem which would have arisen for de- 
 
 cision, that problem being which of the two 
 courts wherein the conllicting proceedings 
 were pending had the paramount right to en- 
 ter a Dinding decree. Having disposed of the 
 case upon the principle of matrimonial domi- 
 cil, it cannot in reason be conceived that the 
 court intended to express an opinion upon 
 the soundness of the theory of individual and 
 separate domicil, which, isolatedly considered, 
 was inadequate to dispose of, and was there- 
 fore irrelevant to, the question for deci- 
 sion. 
 
 It is contended that an overwhelming pre- 
 ponderance of the decisions of state courts en- 
 force th'e doctrine that it is the duty of the 
 states, by virtue of the full faith and credit 
 clause, to give within their borders the full 
 effect required by that clause to decrees of di- 
 vorce rendered in other states, where there was 
 jurisdiction alone by virtue of the domicil of 
 one of the parties. Whilst we may not avoid 
 the duty of interpreting for ourselves the Con- 
 stitution of the United States, in view of the 
 persuasive force that would result if an over- 
 whelming [586] line of state decisions held 
 the asserted doctrine, we come to consider 
 that subject. To examine in detail the many 
 decisions of state courts of last resort, most 
 of which are referred to in the margin,' would 
 expand this opinion to undue length. To 
 avoid so doing, if possible, we propose to more 
 particularly direct our. attention to the cases 
 in state courts which are specially relied on. 
 In doing so we shall add cases in several of 
 the states not particularly counted on in the 
 argument. We shall do this for the purpose 
 of evolving, if possible, from the state cases 
 thus to be referred to some classification 
 typical of all the state decisions, hence en- 
 abling all the cases to which we do not 
 specially refer to be brought within the ap- 
 propriate class to which they pertain, without 
 the necessity of reviewing them in detail. We 
 shall not confine ourselves to the particular 
 state decisions relied on, but shall consider 
 such decisions in the light of the general rule 
 obtaining in the particular state. 
 
 " Cases relating to the validity and extra- 
 territorial effect of a decree of divorce ren- 
 dered upon constructive notice : Turner v. 
 Turner, 44 Ala. 437; Matter of James, 99 
 Cal. 374, 33 Pac. Rep. 1122; Knowlton v. 
 Knowlton, 155 111. 158, 39 N. E. Rep. 595; 
 Dunham v. Dunham, 162 III. 589, 44 N. B. 
 Rep. 841 ; Field v. Field, 215 III. 496, 74 N. 
 E. Rep. 443 ; Hood v. State, 56 Ind. 263, 270 ; 
 Hilbish 17. Hattle, 145 Ind. 59, 44 N. E. Rep. 
 20; Kline v. Kline, 57 Iowa 386, 10 N. W. 
 Rep. 825 ; Van Orsdal v. Van Orsdal, 67 Iowa 
 35 24 N. W. Rep. 579 ; Chapman v. Chapman, 
 48 Kan. 636, 29 Pac. Rep. 1071; Rodgers v. 
 Rodgers, 56 Kan. 483, 43 Pac. Rep. 779; 
 Maguire v. Maguire, 7 Dana (Ky.) 181; 
 Hawkins v. Ragsdale, 80 Ky. 353; Edwards 
 
 V Green, 9 La. Ann. 317 ; Smith v. Smith, 43 
 La. Ann. 1140, 10 So. Rep. 248; Butler v. 
 Washington, 45 La. Ann. 279, 12 So. Rep. 
 356; Harding v. Alden, 9 Me. 140: Stilphen 
 V. Stilphen, 58 Me. 508 ; Stilphen v. Houdlette, 
 60 Me. 447; Garner v. Garner, 56 MA. 127; 
 Lyon V. Lyon, 2 Gray (Mass.) 367; Wright 
 
 V Wright, 24 Mich. 180 ; Van Inwagen v. Van 
 lijwagen, 86 Mich, 333, 49 N. W, Rep. 154; 
 
 Thurston v. Thurston, 58 Minn. 279, 59 N. W. 
 Rep. 1017; Gould v. Crow, 57 Mo. 200; An- 
 thony V. Rice, 110 Mo. 223, 19 S. W. Rep. 
 423 ; Smith v. Smith, 19 Neb. 706, 28 N. W. 
 Rep. 296; Leith v. Leith, 39 N. H. 20; 
 Doughty V. Doughty, 28 N. J. Eq. 581 ; Flower 
 V. Flower, 42 N. J. Eq. 152, 7 Atl. Rep. 669 ; 
 Felt V. Felt, 59 N. J. Eq. 606, 45 Atl. Rep. 
 105, 49 Atl. Rep. 1071; Wallace v. Wallace, 
 62 N. J. Eq. 509, 50 Atl. Rep. 788 ; Lynde v. 
 Lynde, 162 N. Y. 405, 56 N. B. Rep. 979; 
 Winston v. Winston, 165 N. Y. 553, 59 N. E. 
 Rep. 273; Irby v. Wilson, 1 Dev. & B. Eq. 
 (21 N. Car.) 568; Harris v. Harris, 115 N. 
 Car. 587, 20 S. E. Rep. 187; Bidwell v. Bid- 
 well, 139 N. Car. 402, 52 S. E. Rep. 55, 58 ; 
 Cox «. Cox, 19 Ohio St. 502; Doerr v. For- 
 sythe, 50 Ohio St. 726, 35 N. E. Rep. 1055; 
 Colvin V. Reed, 55 Pa. St. 375 ; Reel v. Elder, 
 62 Pa. St. 308; Ditson v. Ditson, 4 R. I. 87; 
 McCreery ». Davis, 44 S. Car. 195, 22 S. E. 
 Rep. 178; Thorns v. King, 95 Tenn. 60, 31 
 S. W. Rep. 983; Prosser v. Warner, 47 Vt. 
 667, 673-; Cook v. Cook, 56 Wis. 195, 14 N. 
 W. Rep. 33, 443, 
 
10 
 
 5 A. & E. ANN. CAS. 
 
 [587J The eases specially relied on are 
 Thompson v. State, 28 Ala. 12; Harding v. 
 Alden, 9 Me. 140 ; Ditson v. Ditson, 4 R. I. 87 ; 
 Burlen v. Shannon, 115 Mass. 438, and Felt 
 V. Felt, 59 N. J. Eq. 606, 45 Atl. Rep. 105, 49 
 Atl. Rep. 1071, to which we shall add for the 
 purposes above stated cases on the same sub- 
 ject decided in New York, Ohio, Wisconsin, 
 Indiana, and Missouri. 
 
 New York. — It is not questioned that the 
 courts of New York are vested by statute with 
 authority to render decrees of divorce where 
 the plaintiff is domiciled within the state, 
 which shall be operative in that state, even 
 although the defendant is a nonresident and 
 is proceeded against by constructive service. 
 
 Borden v. Fitch, 15 Johns. (N. Y.) 121, 
 and Bradshaw v. Heath, 13 Wend. (N. Y.) 
 407, were decided, respectively, in the years 
 1818 and 1835. These cases, as declared by 
 the Court of Appeals of New York in People 
 V. Baker, 76 N. Y. 78, 82, upheld the prin- 
 ciple that a, court of another state could not 
 dissolve the matrimonial relation of a citizen 
 of New York, domiciled m New York, unless 
 he was actually served with notice within the 
 other state or voluntarily appeared in the 
 cause. The doctrine that an action of divorce 
 is one inter partes was thus clearly reiterated 
 by Andrews, J., in Jones v. Jones, 108 N. Y. 
 415, 424, 15 N. E. Rep. 707. 
 
 " The contract of marriage cannot be an- 
 nulled by judicial sanction any more than any 
 other contract inter partes, without jurisdic- 
 tion of the person of the defendant. The mar- 
 riage relation is not a res within the state of 
 the party invoking the jurisdiction of a court 
 to dissolve it, so as to authorize the court to 
 bind the absent party, a citizen of another 
 jurisdiction, by substituted service or actual 
 notice of the proceeding given without the 
 jurisdiction of the court where the proceed-" 
 ing is pending." 
 
 That the principle referred to is still en- 
 forced by the New York court is shown by 
 recent cases, viz., Lynde v. Lynde, 162 N. Y. 
 405, 56 N. E. Rep. 979 ; Winston v. Winston, 
 165 N. Y. 553, 59 N. E. Rep. 273, and the case 
 at bar. And it is indubitable that under this 
 doctrine the [588] courts of New York have 
 invariably refused, as they have done in the 
 case at bar, to treat a divorce rendered in an- 
 other state, under the circumstances stated, 
 as entitled to be enforced in New York by 
 virtue of the full faith and credit clause of 
 the Constitution of the United States; and, 
 indeed, have refused generally to give effect 
 to such decrees even by state comity. 
 
 Massachusetts. — Barber v. Root, 10 
 Mass. 260; Hanover v. Turner, 14 Mass. 227, 
 and Harteau v. Harteau, 14 Pick. (Mass.) 
 181, were decided, respectively, in 1813, 1817, 
 and 1833. In 1835 the legislature of Massa- 
 chusetts incorporated into the statutes of that 
 state, following a section forbidding the recog- 
 nition of divorces obtained in another juris- 
 diction in fraud of the laws of Massachusetts, 
 a provision reading as follows : " In all other 
 cases, a divorce decreed in another state or 
 country, according to the law of the place, by 
 a court having jurisdiction of the cause and 
 
 of both of the parties, shall be ralid and 
 effectual in this state." And it may be ob- 
 served that this section, wjr'n submitted to 
 the legislature by the commissioners for ie- 
 vising the Massachusetts statutes, was accom- 
 panied by the following comment (Rep. 
 Com'rs, pt. II., p. 123) : "This is founded on 
 the rule established by the comity of all 
 civilized nations, and is proposed merely that 
 no doubt should arise on a question so inter- 
 esting and important as this may sometimes 
 be." 
 
 In Lyon v. Lyon, (1854) 2 Gray (Mass.) 
 367, the question was as to the validity in 
 Massachusetts of a divorce decreed in Rhode 
 Island in favor of one party to a marriage 
 against the other who was domiciled in 
 Massachusetts. The court refused to give ex- 
 traterritorial effect to the Rhode Island de- 
 cree. In the opinion by Chief Justice Shaw 
 it was declared that the three cases which we 
 have previously referred to sustained the doc- 
 trine, based upon general principles of law, 
 that a decree of divorce rendered in another 
 state without jurisdiction of both of the par- 
 ties possessed no extraterritorial force. ' 
 
 In Hood V. Hood, (1865) 11 Allen (Mass.) 
 196, the controversy was [589] this: The 
 parties were married in Massachusetts, and 
 after a residence in that state moved together 
 to Illinois. The wife left the domicil of the 
 husband in Illinois and returned to Massa- 
 chusetts. Thereafter, in Illinois, the husband 
 sued the wife for a divorce on the ground of 
 her desertion, obtained a decree, and married 
 again. The case decided in Massachusetts 
 was a suit brought in that state by the former 
 wife against the former husband for divorce 
 on the ground of adultery alleged to have been 
 committed by him with the person whom he 
 had married after the decree of divorce in 
 Illinois had been rendered. The Illinois de- 
 cree was pleaded in bar. The question 
 whether the Illinois decree should be given 
 extraterritorial effect in Massachusetts de- 
 pended, under the rule announced in the pre- 
 vious cases, upon whether both the husband 
 and wife were parties to the Illinois decree. 
 For the purpose of the determination of this 
 jurisdictional question it was held that it 
 was necessary to ascertain whether the wife 
 was justified, by the fault of the husband, in 
 leaving him in Illinois and going back to 
 Massachusetts. It was decided that if she 
 was justified in leaving the husband, her legal 
 domicil was in Massachusetts, and she was 
 not a party to the Illinois decree, and that if 
 she was not justified in living separate from 
 the husband, the ordinary rule being that the 
 domicil of the husband was the domicil of the 
 wife, she was domiciled in Illinois, and must 
 be considered as subject to the jurisdiction of 
 the Illinois court. Applying this legal prin- 
 ciple to the facts in the case before it, the 
 court held that as there was no evidence 
 showing that the wife had justifiable cause 
 for leaving her husband, the legal presumption 
 that the domicil of the husband was the 
 domicil of the wife prevailed, and that the 
 Illinois decree was entitled to extraterritorial 
 effect in Massachusetts, and bound the wife, 
 
HADDOCK V. HADDOCK. 
 201 U. 8. 562. 
 
 11 
 
 because rendered by a court having juriadie- 
 tion over both parties. 
 
 In Shaw c. Shaw, (1867) 98 Mass. 158, the 
 facts were these: The parties were married 
 in Massachusetts, lived there, and left to- 
 gether for the purpose of settling in Colorado. 
 [590] On the journey, at Philadelphia, the 
 wife was forced by the extreme cruelty of 
 the husband to leave him. She returned to 
 Massachusetts, while he went on to Colorado. 
 Subsequently the wife sued in Massachusetts 
 for a divorce from bed and board. The hus- 
 band was brought in by substituted service 
 and defaulted. The court, in the most ex- 
 plicit terms, recognized that a decree of di- 
 vorce to have extraterritorial effect must be 
 rendered with jurisdiction over both parties. 
 It said (p. 159) : "For the purposes of di- 
 vorce the general rule of jurisprudence is that 
 a divorce granted in the place of the domicil 
 of both parties, and there valid, is good every- 
 where." The court came then to consider 
 whether it could render a decree in Massachu- 
 setts in favor of the wife. This depended 
 upon a statute of Massachusetts which au- 
 thorized the granting of a divorce where the 
 cause for divorce occurred while the parties 
 had lived together as husband and wife in 
 Massachusetts, and where one of them lived 
 in that state when the cause for divorce oc- 
 curred. It was held that as at the time of the 
 commission of the cruelty in Philadelphia 
 charged against the husband, the domicil of 
 the parties in Massachusetts had not been 
 lost, and as by that cruelty the wife was jus- 
 tified in returning to Massachusetts, and the 
 subsequent acquisition of a new domicil by 
 the husband in Colorado did not make such 
 domicil that of the wife, there was jurisdic- 
 tion, and the divorce was granted. 
 
 Hood V. Hood, (1872 )110 Mass. 463, was 
 an attempt again to assail the validity of the 
 Illinois decree of divorce which had been ad- 
 judged valid in 11 Allen (Mass.) 196, because 
 it was found that both the husband and wife 
 had been parties to the decree. .The Massa- 
 chusetts decree so holding was therefore held 
 to be res judicata as to all persons and to 
 foreclose further inquiry into the validity of 
 the Illinois decree of divorce. 
 
 In Burlen v. Shannon, (1874) 115 Mass. 
 438, the facts leading up to the controversy 
 and those involved therein were as follows: 
 Shannon and his wife lived together in Massa- 
 [591] chusetts, where she left him. Without 
 stopping to refer t.o prior legal controversies 
 which arose between Shannon and his wife 
 and between Shannon and Mrs. Burlen, which 
 are irrelevant to be considered, it suffices to 
 say that Mrs. Burlen sued Shannon in 1850 
 to hold him liable for necessary supplies fur- 
 nished to the wife. Shannon resisted on the 
 ground that the wife had been living apart 
 from him without his fault or consent, and 
 this defense was maintained. 3 Gray 
 (Mass.) 387. Shannon went to Indiana in 
 1855 and took up his domicil in that state, 
 where, in 1856, he obtained a decree of di- 
 vorce upon constructive service. Subse- 
 quently, in Massachusetts, Mrs. Burlen again 
 sued Shannon for necessaries furnished to the 
 
 wife between Feb. 22, 1860, and Feb. 7, 1866. 
 He pleaded the Indiana divorce, and uhe valid- 
 ity of the divorce was assailed by Mrs. Burlen 
 on the ground that the wife had not been a 
 party to the divorce cause, and therefore the 
 Indiana decree had not extraterritorial effect 
 in Massachusetts. The court, in effect, after 
 reiterating the previous rulings and referring 
 to the statute concerning the necessity for the 
 presence of both parties within the jurisdic- 
 tion where a, decree for divorce of another 
 state was sought to be given effect in Massa- 
 chusetts, also reiterated the previous ruling 
 that the wife might acquire a separate domicil 
 from the husband if she lived separate from 
 him for justifiable cause. The court was 
 brought, therefore, to consider whether Mr. 
 and Mrs. Shannon were both parties to the 
 Indiana decree on the ground that the domi- 
 cil of the husband was the domicil of the wife. 
 The solution of this question depended, as it 
 had depended in Hood v. Hood, II Allen 
 (Mass.) 196, upon wheijher the wife was ab- 
 sent from the husband because of his fault. 
 On this subject it was decided that the pre- 
 vious judgment in favor of Shannon and 
 against Mrs. Burlen in the prior action be- 
 tween the parties had conclusively determined 
 between them that Mrs. Shannon was absent 
 from her husband without his fault or eon- 
 sent, and, therefore, under the legal ■presump- 
 tion that the domicil of the husband v^as the 
 domicil of the wife, both [592] the husband 
 and wife were parties to the Indiana decree 
 and it was not subject to attack in Massachu- 
 setts. To cite, as has sometimes been done, 
 the language of the opinion of the court re- 
 ferring to the previous judgment in the earlier 
 action between, Mrs. Burlen and Shannon as 
 if that language referred to the Indiana de- 
 cree of divorce, leading to the implication 
 that that decree was held to be conclusive, 
 even if only one of the parties was domiciled 
 in the state where the decree was rendered, 
 not only is a plain misconception, but is 
 equivalent to asserting that the Massachu- 
 setts court had overruled its previous deci- 
 sions and disregarded the spirit, if not the 
 letter, of the state statute without the slight- 
 est intimation to that effect. 
 
 In Cummington v. Belchertown, 149 Mass. 
 223, 21 N. E. Rep. 435, the facts were these: 
 The parties to a marriage, celebrated in 
 Massachusetts, lived together in that state 
 until the wife was taken to a Massachusetts 
 asylum for the insane, when the husband 
 abandoned her, acquired a domicil in New 
 York, there brought suit on the ground of 
 fraud for the annulment of the marriage, and 
 obtained a decree. The wife was only con- 
 structively served with process, did not ap- 
 pear, and was not represented. The Massa- 
 chusetts court held, upon the authority of the 
 Blackinton case, 141 Mass. 432, 5 N. E. Rep. 
 830, to which we have already referred, that 
 if the decree was to be recognized in Massa- 
 chusetts, it could only be on grounds of com- 
 ity. And in concluding its opinion the court 
 said: 
 
 " Upon the ground, then, that the decree of 
 the New York court attempts to annul a mar- 
 
12 
 
 5 A. & B. ANN. CAS. 
 
 riage in Massachusetts between Massachu- 
 setts citizens, and thus affect the legal status 
 of the woman, who has remained domiciled 
 in Massachusetts and has never been within 
 the jurisdiction of the New York court, and 
 deprive her of the rights acquired by her mar- 
 riage, and especially because it declares the 
 marriage void for a reason on account of 
 which by the Massachusetts law it cannot be 
 avoided, we are of opinion that it should not 
 be enforced here, and that [593] no principle 
 of interstate comity requires that we should 
 give it effect." 
 
 True it is the court reserved the question as 
 to what effect might be given to a divorce if 
 granted by a New York court under circilm- 
 stances such as existed in that case. But, as 
 a suit for a declaration of nullity and one for 
 divorce are both but modes for determining 
 judicially the status of the parties, it must 
 in reason follow if jurisdiction over both is 
 a prerequisite in the one class, it is of neces- 
 sity also essential in the other. 
 
 Maine. — In Harding v. Alden, (1832) 9 
 Me. 140, the facts were these: While living 
 together in Maine a husband deserted his 
 wife. He went to North Carolina, where he 
 pretended to marry, and lived there with an- 
 other woman. In the meantime the wife 
 whom he had deserted took up her residence 
 in Rhode Island, where she sued for a divorce 
 on the ground of the adultery committed by 
 the husband in North Carolina. The hus- 
 band, who was notified in North Carolina, did 
 not appear in the Rhode Island divorce cause. 
 A decree of divorce was granted and the wife 
 then remarried. The first husband, during 
 the coverture, owned and alienated real es- 
 tate in Maine, and a statute of that state pro- 
 vided that where a divorce was decreed for 
 adultery by the husband, dower might be as- 
 signed to the divorced wife in the same man- 
 ner as if the husband were dead. The di- 
 vorced wife brought an action of dower in a 
 court in Maine. The Rhode Island decree was 
 held to possess validity, in Maine and the stat- 
 ute relating to dower was decided not to be 
 limited to divorces decreed within the state 
 of Maine. Considering the opi^ion in its en- 
 tirety, it is plain that the Rhode Island di- 
 vorce was given recognition from considera- 
 tions of right and justice and upon the 
 ground of state comity. Thus, the court 
 called attention to the fact that adultery was 
 a cause for divorce in both states and that 
 divorces were granted in Maine against non- 
 residents ; and, it was observed, that " there 
 would be great inconvenience in holding " 
 that divorces ought not to be recognized in 
 other states when granted in the state where 
 the injured party [594] resided against one 
 who had established his domicil in another 
 state and there committed adultery. 
 
 True it is in the course of the opinion rea- 
 soning was employed tending to show that the 
 Rhode Island court might be considered to 
 have had jurisdiction in the complete sense 
 and it was intimated that the full faith and 
 credit clause might have application, but the 
 operation of the Rhode Island decree in Maine 
 was by tht decree of the Maine court ex- 
 
 pressly limited to the dissolution of the mar- 
 riage (p. 151). How far removed this was 
 from giving to the Rhode Island decree the 
 benefit of the full faith and credit clause will, 
 we think, be made clear by what follows. 
 
 Harding v. Alden was decided at the July 
 term, 1832. Less than two years afterward, 
 on March 5, 1834, Public Laws 1834, c. 116, 
 p. 119, the statute of Maine regulating di- 
 vorces was supplemented by various provi- 
 sions, one such being the following : " Sec. 
 2. Be it further enacted, That in all cases 
 where one party has been or shall be divorced 
 from the bonds of matrimony, the court 
 granting the same may, upon application 
 therefor, grant to the other party a like di- 
 vorce, on such terms and conditions as the 
 said court in the exercise of a sound discre- 
 tion may judge reasonable." This provision 
 was carried into the Revised Statutes of 1840, 
 c. 89, § 2, and although repealed in 1850, in 
 a general revision of the divorce laws, it was 
 held that the legislature did not intend to de- 
 prive the courts of Maine of the power to en- 
 tertain a suit for divorce brought by a person 
 from whom the other party to a >marriage had 
 already' been divorced, and that the courts 
 of Maine still possessed power to exercise 
 jurisdiction over such suits. Stilphen v. Stil- 
 phen, 58 Me. 508. In the cited case, although 
 a husband had already obtained an absolute 
 divorce, a like divorce was granted to the » 
 wife, and the court allowed to her certain 
 articles of personal property and the sum of 
 $500. In overruling exceptions to the decree 
 the appellate court adopted the theory, that 
 the second decree in no wise impugned the 
 first, and was important only as enabling 
 "the court to make [595] such ancillary de- 
 crees concerning the property as justice and 
 humanity may require" (p. 517). In the 
 course of the opinion the court said (p. 516) : 
 
 " There is no class of cases in which the 
 court is so liable to be imposed upon, and a 
 decision obtained contrary to the truth, as 
 ex parte divorce Suits. The notice is often 
 imperfect, so that -the confession of guilt im- 
 plied in the default is deceptive. And it is 
 well known that witnesses, testifying in the " 
 presence of one of the parties and in the ab- 
 sence of the other, will so alter and magnify 
 the faults of the absent, and suppress every- 
 thing that makes against the party present, 
 that it is impossible to tell where the truth 
 and real merits of the controversy are. When 
 both parties are present, each is sure to put 
 the other in the wrong; and a fortiori is this 
 true, when one of the parties is permitted to 
 testify in the absence of the other, as is now 
 the case in divorce suits. We repeat, there- 
 fore, that there is no class of cases in which 
 the court is so liable to be imposed upon; 
 and it seems to us of the utmost importance 
 that the court should be possessed of the 
 jfower in some form to revise their decisions 
 in this class of cases; otherwise, the grossest 
 injustice is liable to be done." 
 
 In the light of this decision it cannot be 
 assumed that the courts of Maine would give 
 to a citizen of that state against whom a 
 divorce had been obtained in a foreign juris- 
 
HADDOCK V. HADDOCK. 
 20i V. S. 56i. 
 
 ]3 
 
 diction, upon constructive service, a less de- 
 gree of relief than they afford as to a decree 
 rendered in Maine, both parties being present 
 and bound by the decree. 
 
 Rhode Island. — Ditson v. Ditson, (1856) 
 4 R. 1. 87, was a suit for divorce on the 
 grounds of desertion, extreme cruelty, and 
 nonsupport, brought by a wife domiciled in 
 Rhode Island against the husband, who had 
 never resided in Rhode Island, and whose 
 whereabouts was unknown. The question was 
 whether the Rhode Island court ought to ex- 
 ercise jurisdiction. The opinion was mainly 
 devoted to refuting the reasoning employed 
 by Chief Justice Shaw in his opinion in the 
 case of Lyon v. Lyon, 2 Gray (Mass.) 367, 
 in which case, as we have previously [596] 
 shown, the Massachusetts court refused to 
 give effect to a Rhode Island decree of di- 
 vorce where both parties were not within the 
 jurisdiction. The Rhode Island court (in the 
 Ditson case) in effect declared that it would 
 not exercise jurisdiction to grant a divorce 
 if it considered that a decree rendered by it 
 would not be entitled to extraterritorial ef- 
 fect because of a lack of actual jurisdiction 
 over the defendant. The court, however, pro- 
 ceeded to reason that a suit for divorce was 
 in effect a proceeding in rem, and that juris- 
 diction over one of the parties to a suit for 
 the dissolution of the marriage tie drew to 
 the court jurisdiction of the other party, and 
 thereby gave full and complete jurisdiction 
 over the status of hoth parties, and upon that 
 hypothesis decided that it would exercise 
 jurisdiction, and that its decree dissolving 
 the marriage would be entitled to the benefit 
 of the full faith and credit clause of the Con- 
 stitution and have binding efficacy in every 
 other state. 
 
 New Jersey. — Whilst the courts of New 
 Jersey have exercised the power to grant a 
 divorce from a nonresident defendant, upon 
 constructive service, those courts have from 
 the beginning applied to similar decrees of 
 divorce granted in other states, when sought 
 to be enforced in New Jersey against citizens 
 of that state, a rule like the one prevailing 
 in New York, that is, they decline to enforce 
 them even upon the principles of comity. 
 Doughty V. Doughty, 28 N. J. Eq. 581, 586; 
 Flower v. Flower, 42 N. J. Eq. 152, 7 Atl. 
 Rep. 669. Recently, however, it has been de- 
 cided. Felt V. Felt, 59 N. J. Eq. 606, 45 Atl. 
 Rep. 105, 49 Atl. Rep. 1071, that where a de' 
 cree of divorce was rendered in another state, 
 and the complainant alone was subject to the 
 jurisdiction of the court, but it was shown 
 that the defendant had been personally served 
 outside of the jurisdiction with notice of the 
 pendency of the divorce proceeding and was 
 afforded reasonable opportunity to make de- 
 fense and did not avail of the opportunity, 
 effect would be given to such decree in New 
 Jersey, upon principles of comity, provided 
 that the ground upon which the decree rested 
 was one which the public policy of New Jer- 
 sey [597] recognized as a sufficient cause for 
 divorce. In Wallace v. Wallace, 62 N. J. Eq. 
 g(09, m Atl. Bmp. 7*^ «h« wibj<wt is quit. 
 
 Ohio. — In Cooper v. Cooper, (1836) 7 
 Ohio (pt. ii) 238, without citation of author- 
 ity, a divorce granted in Indiana, from a 
 resident of Ohio, upon constructive service, 
 was held to bar an application for divorce 
 and alimony in Ohio. In Mansfield v. Mc- 
 Intyre, (1840) 10 Ohio 27, despite a divorce 
 obtained in Kentucky, by a husband, upon 
 constructive service, the divorced wife was 
 regarded in Ohio as the widow of her former 
 husband after his decease, and as such widow 
 entitled to dower. 
 
 In Cox V. Cox, 19 Ohio St. 502, decided at 
 the December term, 1869, the facts were 
 these: The husband deserted the wife in 
 Ohio, went to Indiana and there obtained a 
 divorce, upon constructive service. The wife 
 remained in Ohio, and three years after the 
 granting of the Indiana divorce to the hus- 
 band she sued him for divorce and for alit 
 mony, alleging abandonment and gross neg- 
 lect of duty. The trial court granted a di- 
 vorce and alimony. The husband appealed, 
 but as such an appeal, under the statutes of 
 Ohio, did not affect the decree as to the di- 
 vorce, the District Court considered only the 
 question of alimony and rendered a new de- 
 cree for alimony against the defendant. The 
 case was then taken to the Supreme Court of 
 the state. In that court attention was called 
 to the fact that under the statutes of Ohio 
 and the decisions of its courts jurisdiction 
 might be exercised over nonresidents in di- 
 vorce cases, and reference was made to 
 various authorities as tending to show that 
 public policy required the recognition of the 
 validity of such decrees in other states as to 
 the dissolution of the marriage. After stat- 
 ing the facts, and observing that the wife was 
 entitled under the laws of Ohio to either di- 
 vorce or alimony, or both, at her election, and 
 alluding to the Indiana decree, the court said 
 (p. 512): 
 
 " The question, therefore, is whether the 
 ex parte decree can be made available, not 
 merely to effect a dissolution of the marriage, 
 but to defeat the right of the petitioner to 
 - the alimony [598] which the statute, upon 
 the facts as they exist in regard to the hus- 
 band's desertion,' intended to provide for her. 
 " We think the decree ought not to have 
 such effect. 
 
 " In arriving at this conclusion we make 
 no distinction between a decree rraidered, 
 under the circumstances of this case, in a for- 
 eign, and one rendered in a domestic forum. 
 " In either case, to give to a decree thus 
 obtained the effect claimed for it, would be to 
 allow it to work a fraud upon the pecuniary 
 rights of the wife. Such a result, in our 
 opinion, is rendered necessary by no principle 
 of comity or public policy — the only grounds 
 upon which ex parte decrees of divorce are 
 authorized and supported. 
 
 " It is not essential to the allowance of ali- 
 mony that the marriage relation should siib- 
 sist up to the time it is allowed. On appeal, 
 alimony may be decreed by the District Court, 
 notwithstanding the subsisting divoree pro- 
 nounced by the Court of OomnjOH Flaas. It 
 is trut tkat tk« «4ni«utt *fifMt m *• all«w- 
 
u 
 
 5 A. & E. ANN. CAS.- 
 
 anoe as being made to the wife. But the term 
 ' wife ' may be regarded as used to designate 
 the person, and not the actual existing rela- 
 tion; or the petitioner may still be regarded 
 as holding the relation of wife for the pur- 
 pose of enforcing her claim to alimony." 
 
 The following cases were cited by the court 
 as sustaining the right of the wife to main- 
 tain an independent proceeding for alimony, 
 even after the husband had obtained a di- 
 vorce. Richardson v. Wilson, 8 Yerg. (Tenn.) 
 67; Crane v. Meginnis, 1 Gill & J. (Md.) 
 463, and Shotwell V. Shotwell, Smed. & M. 
 Ch. (Miss.) 51. 
 
 In Doerr v. Forsythe, (1893) 50 Ohio St. 
 726, 35 H. E. Rep. 1055, an Indiana divorce 
 granted to a husband, upon constructive ser- 
 vice, was held not to bar the right of the wife 
 to dower in lands in Ohio owned during cover- 
 ture by the husband. 
 
 Alabama. — In Thompson v. State, (1856) 
 28 Ala. 12, the facts were these: Thompson 
 deserted his family in Mississippi, went to 
 Arkansas and there obtained a divorce upon 
 constructive service. The wife returned to 
 her father's home in Alabama, and after the 
 divorce the husband also went to [599] Ala- 
 bama, where he again married. He was 
 prosecuted for and convicted of bigamy. The 
 conviction was set aside, however, upon the 
 ground that the guilt or innocence of the ac- 
 cused depended' upon the question as to 
 whether he had a bona fide domicil in Arkan- 
 sas during the pendency of the proceedings 
 for divorce. Harding v. Alden, 9 Me. 140, 
 was cited as authority. 
 
 In a subsequent case, however. Turner v. 
 Turner, (1870) 44 Ala. 437, the Supreme 
 court of Alabama strictly limited, as against 
 a citizen of Alabama, the effect of a, divorce 
 rendered in another state upon constructive 
 service. The parties were married in Ala- 
 bama, where the husbanu deserted the wife, 
 and located in Indiana, where he obtained a 
 divorce upon constructive service. The wife 
 remained in Alabama, and after the granting 
 of the divorce to the husband she sued him 
 in Alabama for a divorce and alimony. The 
 husband pleaded the Indiana decree in bar. 
 The trial court, however, held that the wife 
 was entitled to maintain her suit, and entered 
 a decree for divorce and alimony. In affirm- 
 ing the decree the Supreme Court of Alabama, 
 upon the authority of Thompson v. State, 
 supra, said that the decree of divorce ob- 
 tained by the husband in Indiana might pro- 
 tect him against prosecution for bigamy 
 should he marry again in Alabama. Refer- 
 ring to that decree it further said (p. 450) : 
 
 " But without stopping to inquire whether 
 It was obtained by him by fraud, and there- 
 fore is vicious on that account or not, it cer- 
 tainly cannot affect the rights of the com- 
 plainant, except her right in the husband as 
 husband. If it is valid, it unmarries him 
 and sets him free from his marital vows to 
 her. He is no longer the complainant's hus- 
 band. But it does not settle her right to ali- 
 mony; it does not settle her right to dower 
 in his lands, and her statutory right to dis- 
 tribution of his property in this state, in the 
 
 event she should survive him, nor any other 
 interest of a pecuniary character she may 
 have against him. * * * It is the duty of 
 the state to protect its own citizens, within 
 its own borders. This is the [600] natural 
 compensation for allegiance. This high duty 
 extends to all the pecuniary rights of the 
 citizens, as well as to the rights of security 
 of person. * * * No obligation of comity 
 is paramount to this duty. Without a con- 
 stant and effective exertion of it, citizenship 
 would become a farce. * » * The wife 
 is as much the citizen of the state as the 
 husband, and is entitled to the protection of 
 its laws to the same extent, so long as she 
 remains within its jurisdiction. It would 
 be a scandal to justice to imperil her and 
 sacrifice her most important and cherished 
 rights upon a mere technicality — a techni- 
 cality that often contradicts the truth. When 
 her protection requires it, it would be cruelly 
 unjust for the state of her actual residence 
 and domicil to repudiate its own right of 
 jurisdiction to give her aid. I therefore think 
 that the better opinion is, that she has the 
 right to file her bill here, and to all the re- 
 lief that the court could give her, notwith- 
 standing her husband might not be domiciled 
 in this state at the commencement and during 
 the whole pendency of her litigation with 
 him. * ♦ * 
 
 " Then, if the state courts have competent 
 jurisdiction in such a case, as undoubtedly 
 they have, they may go on and exercise that 
 jurisdiction in the manner and to the extent 
 prescribed by their own laws. 
 
 " Under the laws of this state, by the con- 
 tract and consummation of a marriage, the 
 wife, if she has no separate estate, becomes 
 entitled to dower in the husband's lands, and 
 a certain distributive interest in his personal 
 estate, if she survives him, and to temporary 
 and permanent alimony out of his estate 
 upon a separation by divorce in her favor. 
 These are rights that she cannot legally be 
 deprived of without her consent or her fault. 
 
 * * * If this were not so, then these im- 
 portant statutory provisions in favor of the 
 wife would be repealed or rendered null by a 
 foreign divorce, of which she had no notice 
 and no knowledge, during its whole progress 
 through the forms of a foreign court. To 
 sue in her own domicil is necessary for the 
 protection of the wife. It, therefore, [601] 
 overrides the technical rule that the hus- 
 band's domicil is also the domicil of the wife. 
 
 * * * Here the testimony shows that the 
 wife has no separate estate. The witnesses 
 for the defendants say when she was married 
 she ' brought nothing with her.' It also ap- 
 pears that during her connection with the de- 
 fendant Matthew Turner, as his wife, she 
 was a chaste, industrious, economical, faith- 
 ful, useful, and obedient wife; and that the 
 husband's property is very considerable, 
 worth possibly not less than one hundred 
 thousand dollars. It is also shown that his 
 three children by a former marriage are al- 
 ready sufficiently provided for. 
 
 " Under such a state of facts the sum of 
 thirty thousand dollars was not an unreason- 
 
HADDOCK V. HADDOCK. 
 201 V. 8. 56Z. 
 
 15 
 
 able sum for permanent alimony, to be al- 
 lowed to the wife, nor the sum of eight hun- 
 dred dollars too large for temporary ali- 
 mony. * * * " 
 
 Indiana. — In Tolen v. Tolen, (1831) 2 
 Blaokf. (Ind.) 407, the facta were these: A 
 wife, on being deserted in Kentucky, removed 
 to jind became domiciled in Indiana, and after 
 a residence there of five years sued for a di- 
 vorce from the nonresident husband. In an 
 opinion of great length the court considered 
 the question of its power to grant a divorce 
 which would be valid in Indiana, and decided 
 it had such power, but expressly reserved 
 passing on the question whether the decree 
 would have extraterritorial force. 
 
 In Hood V. State, (1877) 56 Ind. 263, 271, 
 it was declared that as an ex parte divorce 
 in favor of one domiciled within the juris- 
 diction of a state, and against a nonresident, 
 although founded upon constructive service, 
 was valid as to the plaintiff, " public policy 
 demands that it should be held valid as to 
 both parties." 
 
 In Hilbish v. Hattle, (1896) 145 Ind. 59, 44 
 N. E. Rep. 20, certain sections of the Indiana 
 Revised Statutes, wherein it was provided 
 that the divorce of one party to a marriage 
 should dissolve the contract as to both, and 
 that a divorce decreed in another state by a 
 court having jurisdiction of the cause should 
 have full effect in Indiana, were held to be 
 applicable to a decree of [602] divorce 
 granted in another state, in favor of a hus- 
 band, upon constructive service, and the same 
 effect was given to the decree, as to the rights 
 of the wife in the property of the husband 
 in Indiana, as if the divorce had been ren- 
 dered in Indiana. 
 
 Missouri. — In Gould v. Crow, 57 Mo. 200, 
 a decree of divorce regularly obtained by a 
 husband in Indiana, on an order of publica- 
 tion, without personal service, was held to 
 operate as a divorce in favor of the husband 
 in Missouri, so as to prevent the wife from 
 claiming her dower in lands in Missouri 
 owned by the husband. Harding v. Alden, 9 
 Me. 140, was relied upon as authority. A 
 statute of Missouri, barring the claim of a 
 wife for dower after divorce granted by reason 
 of her fault, was held to apply to all divorces, 
 whether obtained in Missouri or in other 
 states, and whether obtained on personal ser- 
 vice or by order of publication. The doctrine 
 of Gould V. Crow was reaflSrmed and applied 
 in Anthony v. Rice, 110 Mo. 223, 19 S. W. 
 Rep. 423. 
 
 Wisconsin. — In Shafer v. Bushnell, (1869) . 
 24 Wis. 372, an ex parte divorce granted a 
 wife in Minnesota upon constructive service 
 of the defendant, a citizen of Minnesota, was 
 held upon the grounds of comity to be con- 
 clusive in Wisconsin in respect to the status 
 or domestic and social condition of the wife. 
 The decree was held to bar an action for 
 criminal intercourse against the person whom 
 the complainant in the divorce suit married 
 after the granting of the divorce. 
 
 In Cook V. Cook, (1882) 56 Wis. 195, 14 
 N. W. Rep. 33, 443, however, in an elaborate 
 opinion, an ex parte divorce obtained in 
 
 Michigan upon constructive service merely, 
 by a husband who had deserted his wife in 
 Wisconsin, was held not to affect the status 
 of the wife in Wisconsin nor to bar her from 
 suing in Wisconsin for divorce, alimony, al- 
 lowance, and a division of the property of 
 such husband situated within, Wisconsin. 
 
 Deducing the law of the several states from 
 the rulings of their courts of last resort 
 which we have just reviewed and ignoring 
 mere minor differences, the law of such states 
 is embraced within one or the other of the 
 following headings : 
 
 [603] a. States where the power to decree 
 a divorce is recognized, based upon the mere 
 domicil of the plaintiff, although the decree 
 when rendered will be but operative within 
 the borders of the state, wholly irrespective 
 of any force which may be given such decree 
 in other states. Under this heading all of 
 the states are embraced, with the possible ex- 
 cepti^n of Rhode Island. 
 
 6. States which decline, even upon prin- 
 ciples of comity, to recognize and enforce as 
 to their own citizens, within their own bor- 
 ders, decrees of divorce rendered in other 
 states, when the court rendering the same had 
 jurisdiction over only one of the parties. 
 Under this heading is embraced Massachu- 
 setts, New Jersey (with the qualification 
 made by the decision in 59 N. J. Eq. 606) 
 and New York. 
 
 c. States which, whilst giving some effect 
 to decrees of divorce rendered against its 
 citizens in other states, where the court had 
 jurisdiction of the plaintiff alone, either place 
 the effect given to such decrees upon the prin- 
 ciple of state comity alone, or make such limi- 
 tations upon the effect given to such decree 
 as indubitably establishes that the recogni- 
 tion given is a result merely of state comity. 
 As the greater includes the less, this class 
 of course embraces the cases under the pre- 
 vious heading. It also includes the states of 
 Alabama, Maine, Ohio, and Wisconsin. 
 
 d. Cases which, although not actually so 
 deciding, yet lend themselves to the view that 
 ex parte decrees of divorce rendered in other 
 states would receive recognition by virtue of 
 the due faith and credit clause. And this 
 class embraces Missouri and Rhode Island. 
 
 Coming to consider, for the purpose of 
 classification, the decided cases in other states 
 than those previously reviewed, which have 
 been called to our attention, the law of such 
 states may be said to come under one or the 
 other of the foregoing headings, as follows: 
 
 Proposition a embraces the law of all the 
 states, since in the decision of no state is 
 there an intimation expressing the ex- 
 [604] ception found in the Rhode Island 
 case which caused us to exclude that state 
 from this classification. 
 
 Under proposition 6 comes the law of the 
 states of Pennsylvania, Vermont, and South 
 Carolina. A line of decisions of the state 
 of North Carolina would also cause us to em- 
 brace the law of that state within this classi- 
 fication, but for a doubt engendered in our 
 minds as to the ^effect of the law of North 
 Carolina on the subject, resulting from sug- 
 
16 
 
 5 A. & E. ANN. CAS. 
 
 gestions made by the North Carolina court in 
 the opinion in the Bidwell case, 139 N. Car. 
 402, 52 S. E. Rep. 55. 
 
 Proposition c embraces the law of Kansas, 
 Louisiana, Maryland, Michigan, Minnesota, 
 Nebraska, and New Hampshire. And it is 
 pertinent here to remark that in Michigan, 3 
 Comp. Laws Mich. (1897), ],ar. 8621, c. 
 232, ij 6, the obtaining of a divorce in an- 
 other state from a citizen of Michigan is 
 made cause for the granting of a divorce in 
 Michigan to its citizens. A like provision is 
 also in the statutes of Florida. Rev. Stat. 
 Florida (1902)^ § 1480. 
 
 Under proposition d we embrace the re- 
 maining states, although as to several the 
 classification may admit of doubt, viz., Cali- 
 fornia, Illinois, Iowa, Kentucky, and Ten- 
 nessee. 
 
 It indubitably, therefore, follows from the 
 special review we have made of cases in cer- 
 tain states, and the classification just made 
 of the remaining state cases which were 
 called to our attention and which we have 
 previously cited in the margin, that the con- 
 tention is without foundation, that such cases 
 establish by an overwhelming preponderance 
 that, by the law of the several states, decrees 
 of divorce obtained in a state with jurisdic- 
 tion alone of the plaintiff are, in virtue of 
 the full faith and credit clause of the Consti- 
 tution, entitled to be enforced in another state 
 as against citizens of such state. Indeed, th» 
 analysis and classification which we have 
 made serves conclusively to demons'traie that 
 the limited recognition which is given in 
 most of the states to such ex parte decrees of 
 divorce rendered in other states is wholly in- 
 consistent with the theory that such limited 
 recognition is based [605] upon the opera- 
 tion of the full faith and credit clause of the 
 Constitution of the United States, and on the 
 contrary is consistent only with the concep- 
 tion that such limited recognition as is given 
 is based upon state comity. No clearer 
 demonstration can be made of the accuracy of 
 this statement than the obvious consequence 
 that if the full faith and credit clause were 
 now to be held applicable to the enforcement 
 in the states generally of decrees of divorce 
 of the character of the one here involved it 
 would follow that the law of nearly all of the 
 states would be overthrown, and thus it 
 would come to pass that the decisions which 
 were relied upon as establishing that the dus 
 faith and credit clause applies to such de- 
 crees would be overruled by the adoption of 
 the proposition which it is insisted those de- 
 cisions maintain. The only escape from this 
 conclusion would be to say that the law of 
 the states as shown by the decisions in ques- 
 tion would remain unaffected by the ruling 
 of the full faith and credit clause because not 
 repugnant to that clause. This would be, 
 however, but to assert that the full faith and 
 credit clause required not that full faith and 
 credit be given in one state to the decrees of 
 another state, but that only a limited and re- 
 stricted enforcement of a decree of one stata 
 in anothar woTild fulfil the requiremtnts of 
 tkat ]ir«Tisi»» of the ©t»»ti*utiM. To s» 
 
 decide would be to destroy the true import 
 of the full faith and credit clause as pointed 
 out in the outset of this opinion. Thus, in its 
 ultimate aspect the proposition relied upon 
 reduces itself to this, either that the settled 
 law of most of the states of the Union as tq 
 divorce decrees rendered in one state, where 
 the court rendering the decree had jurisdic- 
 tion only of the plaintiff, must be held to be 
 invalid. Or that an important provision of 
 the Constitution of the United States must be 
 shorn of its rightful meaning. 
 
 Without questioning the power of the state 
 of Connecticut to enforce within its own bor- 
 ders the decree of divorce which is here in 
 issue, and without intimating a doubt as to 
 the power of the state of New York to give 
 to a decree of that character [606] rendered 
 in Connecticut, within the borders of the 
 state 5f New York and as to its own citizens, 
 such efBcacy as it may be entitled to in view 
 of the public policy of that state, we hold 
 that the decree of the court of Connecticut 
 rendered under the circumstances stated was 
 not entitled to obligatory enforcement in the 
 state of New York by virtue of the full faith 
 and credit clause. It therefore follows that 
 the court below did not violate the full faith 
 and credit clause of the Constitution in re- 
 fusing to admit the Connecticut decree in 
 evidence; and its judgment is, therefore, 
 affirmed. 
 
 Browit, J. (with whom wer* Harlakt, 
 Bbbwee, and Holmes, JJ., dissenting) . — 
 Marriage between these parties was solem- 
 nized June 4, 1868. They separated the same 
 day, without a consummation, and have never 
 lived together since. No matrimonial domicil 
 was ever established in New York or else- 
 where. Defendant left New York soon after 
 the wedding, drifted about the country for 
 several years, and finally settled in Connec- 
 ticut in 1877; remained there twelve years, 
 during which time, and in 1881, he obtained 
 a divorce in the Superior Court of Litchfield 
 county, which he now sets up in defense of 
 this action. 
 
 Plaintiff took no steps for twenty-six years 
 to obtain a legal separation or maintenance, 
 when, in July, 1894, she applied to the Su- 
 perior Court of the state of New York for a 
 summons by publication. The defendant did 
 not appear, and a decree was rendered against 
 him by default, separating the parties and 
 granting alimony of $1,500 a year- This de- 
 cree appears to have been abortive, so far as 
 respects alimony at least, probably for lack 
 of personal service on the defendant. Mean- 
 time, and in 1891,' defendant had inherited a 
 considerable property from his father. 
 
 This action was begun by a summons dated 
 June 3, 1899, thirty-one years after the mar- 
 riage; was served upon "the defendant, [607] 
 who answered Dec. 18, 1899, setting up, 
 amongst other things, the decree of the Su- 
 perior Court of Litchfield county dissolving 
 the marriage, the validity of which presents 
 the only federal question In this eag». 
 
 1. This deeraa is atteakad upom thti ground 
 that the Conm««M«ut Murt a.til«9. irltHtut 
 
HADDOCK V. HADDOCK. 
 SOI V. s. set. 
 
 IT 
 
 jurisdiction of the parties lawfully obtained. 
 The record in that case shows that notice of 
 the pendency of the petition was ordered to 
 be published in a Litchfield paper, and also 
 that a copy of the petition be sent to the re- 
 spondent by mail, postage paid, at Tarrytown, , 
 New York. While there is no afSdavit of the 
 publication of the notice, there is a recital 
 in the decree " that said complaint and writ 
 have been duly served upon the defendant 
 pursuant to an order of notice made thereon 
 by the clerk of this court." This is sufficient 
 prima facie evidence of the publication to 
 entitle the record to be received. Applegate 
 v: Lexington, etc., Min. Co., 117 U. S. 255, 
 269, 6 U. S. Sup. Ct. Rep. 742, wherein it was 
 said by the court that " while it must be 
 conceded that, in order to give the court 
 jurisdiction over the persons of the defend- 
 ants, all the steps pointed out by the statute 
 to effect constructive service on nonresidents 
 were necessary, yet it does not follow that the 
 evidence that the steps were taken must ap- 
 pear in the record, unless indeed the statute, 
 expressly or by implication, requires it. 
 * * * Therefore every presumption not in- 
 consistent with the record is to be indulged 
 in, in favor of its jurisdiction. * * * It 
 is to be presumed that the court before mak- 
 ing its decree took care to see that its order 
 for constructive service, on which its right to 
 make the decree depended, had been obeyed." 
 
 As the record was rejected for reasons ap- 
 pearing only upon its face, it is unnecessary 
 to decide whether the recitals in the decree 
 can be contradicted. Possibly the New York 
 court might have assailed its validity by 
 showing that, notwithstanding the recitals in 
 the record, the court acquired no jurisdiction 
 of the defendant by failure to comply with 
 the order of the court with reference to the 
 publication of notice in a newspaper, [608] 
 or in sending a copy of the petition and com- 
 plaint to the defendant by mail at Tarry- 
 town, New York, the last known place of resi- 
 dence. The fact that the referee refused to 
 admit the record, even as prima facie evi- 
 dence, foreclosed any defense founded upon 
 the actual failure to obtain jurisdiction over 
 the defendant. 
 
 There is no doubt of the proposition that a 
 decree of divorce may be lawfully obtained 
 at the matrimonial domioil, notwithstanding 
 that the defendant may have taken up his 
 or her residence separate from the other party 
 in another state, providing that the law of 
 the domicil with respect to the personal ser- 
 vice or publication be scrupulously observed. 
 Atherton v. Atherton, 181 U. S. 155, 21 U. S. 
 Sup. Ct. Kep. 544. 
 
 Doubtless the jurisdiction of the court 
 granting the divorce may be inquired into, 
 and if it appear that the plaintiff had not 
 acquired a hona fide domicil in that state at 
 the time of instituting proceedings, the de- 
 cree is open to a collateral attack. Bell v. 
 Bell, 181 U. S. 175, 21 U. S. Sup. Ct. Rep. 
 551; and a re«ital in the proceedings of a 
 fact necessary to show jurisdiction may be 
 contradicted. Thompson v. Whitman, 18 
 Wall. (U. S.) 457; Strsitwolf v. Streitwolf, 
 
 5 A & E. Ann. ©ab. — 2. 
 
 181 U. S. 179, 21 U. S. Sup. Ct. Rep. 553; 
 Andrews v. Andrews, 188 U. S. 14, 23 U. S. 
 Sup. Ct. Rep. 237. 
 
 ■ Subject to these conditions, each state has 
 the right to regulate the marital status of its, 
 citizens, at least so far as to determine in 
 what manner and by whom marriages may 
 be solemnized, what shall be deemed the age 
 of consent, what obligations are assumed, 
 what property rights are created, for what 
 causes divorces shall be granted, for what 
 length of time the domicil of plaintiff shall 
 have been acquired prior tb the institution of 
 the proceedngs, and in what manner notice 
 shall be given to the defendant. Nor is the 
 power of the legislature in this connection 
 ousted by the fact that the other party to the 
 contract resides in another state, provided 
 that in case of proceedings adverse to such 
 party he or she shall be given such notice as 
 due process of law requires. If such pro- 
 ceedings be in rem or quasi in rem, notice by 
 publication is ordinarily deemed sufficient. 
 But in case of actions in personam, [609] 
 for the recovery of damages, personal service 
 within the jurisdiction is vital to the pro- 
 ceedings. Pennoyer v. Neff, 95 U. S. 714; 
 Huling V. Kaw Valley R., etc., Co., 130 U. S. 
 559, 9 U. S. Sup. Ct. Rep. 603. 
 
 By the laws of Connecticut of 1878, c. 71, 
 p. 305, exclusive jurisdiction is given to the 
 Superior Courts to grant divorces for several 
 causes, among which are " wilful desertion 
 for three years with total neglect of duty," 
 with a further provision (Gen. Stat. 4555) 
 " that plaintiff shall have continuously re- 
 sided in the state three years next before the 
 date of the complaint," with certain excep- 
 tions not material to be noticed. A further 
 provision, section 4553, that, " where the ad- 
 verse party resides out of or is absent from 
 the state, or the whereabouts of the adverse 
 party is unknown to the plaintiff, any judge 
 or clerk of the Suprenje Court of Errors or 
 the Superior Court, or any county commis- 
 sioner, may make such order of notice as he 
 may deem reasonable, and, such notice having 
 been given and duly proved to the court, it 
 may hear such complaint if it find that the 
 defendant has actually received notice that 
 the complaint is pending; and if it shall not 
 appear that the defendant has had such 
 notice, the court may hear such case, or, if 
 it see cause, order such further notice to be 
 given as it may deem reasonable, and con- 
 tinue the complaint until the order is com- 
 plied with." 
 
 The complaint alleged a wilful desertion of 
 the plaintiff for more than three years, and 
 the court found this to be the fact. 
 
 2. The case turns upon the question whether 
 the Superior Court of Litchfield county gained 
 jurisdiction by a residence of the plaintiff 
 within the state for more than three years. 
 The testimony also showed that the defendant 
 had acquired a separate domicil in New York, 
 and had been living there for about thirteen 
 years. 
 
 In discussing this question two propositioas 
 may be admitted at one*, and disa)ird*4 xs 
 having no relevancy to the case : 
 
18 
 
 5 A. & E. ANN. CAS. 
 
 1. That a judgment for damages in an ac- 
 tion in personam, is valid only when personal 
 service has been made upon the [610] de- 
 fendant within the jurisdiction of the court 
 rendering the judgment. This disposes at 
 once of the cases of Pennoyer v. Neff, 95 U. 
 S. 714; of Mississippi, etc., R. Co. v. Ward, 
 2 Black (U. S.) 485, where an Iowa court 
 had undertaken to abate a nuisance on the 
 Illinois side of the Mississippi river; and of 
 Delaware, etc., R. Co. v. Pennsylvania, 198 
 U. S. 342, 25 U. S. Sup. Ct. Rep. 669, where 
 a state had attempted to tax property having 
 a permanent sUus in another state. 
 
 2. That the courts of one state may not 
 grant a divorce against an absent defendant 
 to any person who has not acquired a 'bona 
 fide domicil in that state. The same rule ap- 
 plies if he has removed thither solely for the 
 purpose oif acquiring a domicil and obtaining 
 a divorce for a cause which would have been 
 insufficient in the state from which he re- 
 moved. Andrews v. Andrews, 188 U. S. 14, 
 23 U. S. Sup. Ct. Rep. 237. 
 
 The jurisdiction of the Connecticut court 
 in this case is shown, not by the facts as they 
 appear in this case, but from the record in 
 that case, and primarily from the petition, 
 which under the practice in that state is in- 
 corporated with the summons. The allega- 
 tions are: 
 
 " On the first day of January, 1869, the 
 defendant wilfully deserted the plaintiff, and 
 has continued said desertion, with total neg- 
 lect of all the duties of the marriage on her 
 part to be performed to the date of this writ, 
 being for mor^ than three years, and during 
 the plaintiff's residence in this state." 
 
 It is conceded that such desertion is good 
 ground for a divorce in Connecticut, which 
 may be granted to a plaintiff who has con- 
 tinuously resided in the state three years next 
 before the date of the complaint. The com- 
 plaint obvibusly made a ease for divorce 
 under the statute. The court found that the 
 complaint and writ had been duly served on 
 the defendant, pursuant to an order of notice 
 ma"de thereon by the clerk; that the allega- 
 tions of the complaint had been sustained, 
 and a divorce was granted. 
 
 The case then resolves itself into the single 
 question whether a divorce granted to a plain- 
 tiff lawfully domiciled within a [611] state, 
 as against a defendant domiciled in another 
 state, who has been served by publication or 
 letter only, is a valid defense to a suit by the 
 latter for a separation and alimony. 
 
 Certain cases in this court tend strongly to 
 support the proceedings in Connecticut. 
 Strader v. Graham, 10 How. (U. S.) 82, was 
 an action to recover the value of certain 
 slaves carried into Ohio, a free state. The 
 case was dismissed, as involving a question 
 of the local law of Kentuclcy, the court re- 
 marking: " Every state has an undoubted 
 right to determine the status, or domestic and 
 social condition, of the persons domiciled 
 within its territory, * * * and that it 
 was exclusively in the power of Kentucky " 
 (wherein the suit was brought) " to deter- 
 mine for itself whether their employment in 
 
 another state should or should not make 
 them free on their return." 
 
 In Barber v. Barber, 21 How. (U. S.) 582, 
 a, New York court decreed a separation and 
 alimony to the wife. The husband removed 
 to Wisconsin for the purpose of placing him- 
 self beyond the jurisdiction of the court which 
 could enforce it, and there obtained a divorce 
 a vinculo upon the ground of abandonment. 
 The sole question raised by the record was: 
 " Whether a wife divorced a mensa et thoro 
 can acquire another domiciliation in a, state 
 of this Union different from that of her hus- 
 band, to entitle her, by her next friend, to 
 sue him in a court of the United States, hav- 
 ing equity jurisdiction, to recover from him 
 alimony due, and which he refuses to make 
 arrangement to pay; and whether a court of 
 equity is not a proper tribunal for a remedy 
 in such a case." 
 
 It was a suit to recover upon a judgment 
 obtained in New York before proceedings in- 
 stituted in Wisconsin, and was sustained. 
 Obviously, the Wisconsin divorce was no de- 
 fense, but its validity was not impugned. 
 
 Cheever v. Wilson, 9 Wall. (U. S.) 108, 
 turned upon certain rights of property, and 
 incidentally upon a divorce obtained in In- 
 diana, in a suit in which the defendant ap- 
 peared. The case, however, is valuable for 
 two questions decided: first, that a decree 
 of divorce, valid and effectual by the laws of 
 the state [612] in which it was obtained, is 
 valid and effectual in all other states; second, 
 that a wife may acquire a domicil different 
 from her husband's whenever it is necessary 
 or proper that she should have such a domi- 
 cil; and on such a domicil, if the case other- 
 wise allow it, may institute proceedings for 
 divorce, though it be neither her husband's 
 domicil nor have been the domicil of the par- 
 ties at the time of the marriage, or of the 
 offense. 
 
 Of course, it follows that if the wife may 
 obtain a new domicil her husband may do 
 likewise, as was done in this case, after the 
 separation or abandonment had taken place. 
 In delivering the opinion, Mr. Justice Swayne 
 observed: "The decree (of divorce) was 
 valid and effectual, according to the law and 
 adjudications, in Indiana." 
 
 The Constitution and laws of the United 
 States give the decree the same effect else- 
 where which it had in Indiana. " ' If a judg- 
 ment is conclusive in the state where it is 
 rendered, it is equally conclusive everywhere ' 
 in the courts of the United States." 
 
 In Cheely v. Clayton, 110 U. S. 701, 4 U. S. 
 Sup. Ct. Rep. 328, a divorce obtained in a ter- 
 ritorial court, upon notice by publication in- 
 sufficient under the laws of the territory, was 
 held to be of no effect. The court, however, 
 observing: "If a wife is living apart from 
 her husband without sufficient cause, his 
 domicil is in law her domicil; and, in the 
 absence of any proof of fraud or misconduct 
 on his part, a divorce obtained by him in the 
 state of his domicil, after reasonable notice 
 to her, either by personal service or by publi- 
 cation, in accordance with its laws, is valid, 
 although she never in fact resided in that 
 
HADDOCK -v. HADDOCK. 
 
 19 
 
 Wl V. 8. 
 
 state," citing Burlen v. Shannon, 115 Mass. 
 438, and Hunt v. Hunt, 72 N. Y. 218. 
 
 In Maynard v. Hill, 125 U. S. 190, 8 U. S. 
 Sup. Ct. Rep. 723, u. legislative divorce was 
 upheld, and it was said that the fact that no 
 cause existed for the divorce, and that it was 
 obtained without tlie knowledge of the wife, 
 cannot affect the validity of the act. It was 
 further said that though the conduct of the 
 husband merited the strongest reprobation, 
 his abandonment of his wife, his loose (613] 
 morals and shameless conduct could have no 
 bearing upon the power of the assembly to 
 pass the act. 
 
 Four recent decisions in this court are too 
 important to pass unnoticed. In Bell v. Bell, 
 181 U. S. 175, 21 U. S. Sup. Ct. Rep. 551, 
 and in Streitwolf v. Streitwolf, 181 U. S. 179, 
 21 U. S. Sup. Ct. Rep. 553, it was held that a 
 divorce obtained in a state in which neither 
 party was domiciled, upon service by publi- 
 cation and in another state, was entitled to 
 no faith and credit. These decisions were 
 unanimous. And in Andrews v. Andrews, 188 
 U. S. 14, 23 U. S. Sup. Ct. Rep. 237, that a 
 divorce obtained by one who had gone into 
 another state to procure a divorce in fraud 
 of the law of the domieil, was also invalid. 
 
 There remains the ease of Atherton v. 
 Atherton, 181 U. S. 155, 21 U. S. Sup. Ct. 
 Rep. 544, a divorce obtained by a husband in 
 Kentucky, which had been the matrimonial 
 domieil, though the wife had been absent from 
 the state for several months, and apparently 
 had attempted to acquire a new domieil in 
 New York. The court took care to coniine 
 the case to the one point decided, namely, the 
 validity of a divorce obtained at the matri- 
 monial domieil. The court out of abundant 
 caution expressly disclaimed that the case 
 involved the validity of a divorce granted, on 
 constructive service, by the court of a state 
 in which only one of the parties ever had a 
 domieil; nor the question to what extent the 
 good faith of the domieil may be afterwards 
 inquired into. " In this case, the divorce 
 in Kentucky was by the court of the state, 
 which had always been the undoubted domieil 
 of the husband, and which was the only mat- 
 rimonial domieil of the husband and wife. 
 The single question to be decided is the valid- 
 ity of that divorce, granted after such notice 
 had been given as was required by the stat- 
 utes of Kentucky." 
 
 While the Atherton case, as already stated, 
 was confined to a divorce obtained at the mat- 
 rimonial domieil, the cases cited by Mr. Jus- 
 tice Gray in his opinion relate to divorces 
 obtained in a state which was the domieil 
 only of the complaining party, and are prac- 
 tically the same as those cited by him in his 
 opinion as chief justice of Massachusetts, in 
 Burlen v. Shannon, 115 Mass. 438. In reading 
 the two cases together one is [614] strongly 
 impressed with the idea that in the Atherton 
 case he had the former case in mind, and 
 gave it such approval as the facts in the lat- 
 ter case would warrant. Not only had the 
 Court of Appeals of Kentucky decided that 
 a wife residing in that state was entitled to 
 obtain a decree of divorce against her hus- 
 
 band who had left the state, Rhyms v. Rhyms, 
 7 Bush (Ky.) 316; Perzel v. Perzel, 91 Ky. 
 034, 15 S. W. Rep. 658; but a number of 
 cases from other states were cited holding to 
 the same principle. 
 
 The opinion of the court in the present case 
 admits that where the domieil of the husband 
 is also the domieil of matrimony, the courts 
 of that domieil may disregard an unjustifi- 
 able absence of the wife therefrom, and treat 
 her as having her domieil there for the pur- 
 pose of dissolving the marriage as to both 
 parties, and that such dissolution would be 
 recognized in all other states by virtue of the 
 full faith and credit clause, citing to this 
 effect Atherton v. Atherton, 181 U. S. 155, 
 21 U. S. Sup. Ct. Rep. 544, and, as a corollary 
 therefrom, it is admitted that no question 
 can arise concerning the right of the state of 
 Connecticut to give effect to a decree of di- 
 vorce rendered in favor of the husband while 
 domiciled in that state. The question is, un- 
 doubtedly, as stated, whether the Connecticut 
 court, in virtue of the domieil of the husband 
 in that state, has jurisdiction to render a de- 
 cree against the wife which was entitled to 
 be enforced in other states, under the full 
 faith and credit clause. 
 
 I deny, however, that the final question is 
 whether this would be enforcing a personal 
 judgment rendered in another state against 
 t'-" defendant, over whom the court rendering 
 the judgment had not acquired jurisdiction. 
 A proceeding for divorce is not in personam 
 nor of an exceptional character, except so 
 far as all proceedings in rem are governed 
 by a different rule from that applicable to 
 proceedings in personam,. The validity of the 
 latter class depends upon personal service of 
 the defendant being obtained within the juris- 
 diction. The validity of the former depends 
 upon the jurisdiction of the court over the 
 res — in this case the marriage relation, the 
 domieil of the plaintiff, and such jurisdiction 
 over the defendant as is consonant [615] 
 with the general principles of the Constitu- 
 tion with regard to due process of law. 
 
 The propositions of the opinion, as we 
 understand it, may be summarized as follows : 
 
 That, if one government, by virtue of its 
 authority over marriage, may dissolve the tie 
 as to citizens of another government, that 
 . other government would have a similar power, 
 and hence the right of every government over 
 its own citizens might be rendered nugatory 
 by he exercise of the power which every 
 other government possesses. To illustrate by 
 the present case: That, if the husband may 
 desert his original domieil in New York, go 
 to the state of Connecticut, acquire a domieil 
 there, and procure a divorce which would be 
 bindinsf in New York as to the party there 
 domiciled, it would follow that the power of 
 the state of New York as to the dissolution 
 of the marriage, as to its domiciled citizen, 
 would>be of no practical avail. The opinion, 
 however, fails to state the logical result of 
 this proposition, viz., that no divorce would 
 be possible in either state without a personal 
 service upon the other within the state. If 
 the husband, having his domieil in Connect!- 
 
20 
 
 5 A. & E. ANN. CAS. 
 
 cut, ceuld list obtain a. divorce against his 
 wii* domisiltMi in N«w York without a per- 
 sonal gsrviee, it follows that the wif» domi- 
 ciled in New York could not obtain a divorce 
 against her husband in that state without a 
 personal service there. 
 
 Undoubtedly the laws of some states are 
 more liberal upon the subject of divorce than 
 those of other states, but that does not affect 
 the question. If the complaining party has 
 , acquired a domicil in the state in which he 
 ' institutes proceedings, he is entitled to the 
 benefit of the laws of that state with respect 
 to the causes of divorce. 
 
 It is argued that, as the Constitution dele- 
 gated no authority to the government of the 
 United States on the subject of marriage and 
 divorce, yet, if the validity of the Connecticut 
 divorce in this case be sustained, it follows 
 that the destruction of the power of the states 
 over the dissolution ot marriage of its own 
 citizens would be brought about by the full 
 faith and credit [616] clause of the Consti- 
 tution. But this was the very point decided 
 in the Atherton case, where a divorce obtained 
 in Kentucky by publication was held good in 
 New York, as against a proceeding by the 
 wife for a divorce in that state. It is true 
 that the matrimonial domicil was in Ken- 
 tucky. But this does not affect the proposi- 
 tion asserted in the opinion, that the decree 
 did work a dissolution of the marriage, as 
 to her, by the operation of the full faith and 
 credit clause of the Constitution, and to that 
 extent it did work a destruction of the power 
 of the state of New York over the dissolution 
 of the marriage. But the argument to that 
 
 ■ effect was not considered by this court to be 
 sound. It does undoubtedly follow that the 
 res, that is, the marriage relation, was as 
 much in the state of New York as it was in 
 the state of Connecticut, but it does not fol- 
 low that the action of the Connecticut court 
 with respect to that res is not as much ob- 
 ligatory in New York as in Connecticut. It 
 is of the very essence of proceedings in rem 
 that the decree of a court with respect to the 
 res, whether it be a vessel, a tract of land, 
 or the marriage relation, is entitled to be re- 
 spected in every other state or country.. The 
 status fixed by the adjudication in the state 
 of the former is operative everywhere. In- 
 deed,' the proposition is so elementary as not 
 to need the citation of an authority. 
 
 The conclusion of the argument is that the 
 courts of New York having the same power 
 to decree a dissolution of the marriage at the 
 suit of the wife that the courts of Connecti- 
 cut would have to make a similar decree at 
 the suit of the husband, it would become a 
 mere race of diligence between the parties in 
 seeking diflferent forums in other states; or 
 the celerity by which in such states judg- 
 ments of divorce might be procured would 
 
 ■ have to be considered in order to decide which 
 forum was controlling. Granting this to be 
 the case, does not every plea of res adjudicata 
 presuppose a prior judgment, and is it a de- 
 fense to such plea that such judgment was 
 obtained by superiority in a race of diligence? 
 The whole doctrine is founded, if not upon 
 
 the doctrine of superior diligence, at laast 
 upon the [617] theory of a prior judgment, 
 which fixes irrevocably the rights of the par- 
 ties, whenever and wherever these rights may 
 come in question*. Nor is the rule less opera- 
 tive where suits are in different states and the 
 laws applicable to the questions therein aris- 
 ing are different. To illustrate: Suppose 
 a note and mortgage were given for usurious 
 interest, and the mortgage was sought to be 
 foreclosed in a state where, by statute, usury 
 would invalidate both principal and interest, 
 and a decree were obtained dismissing the 
 bill, can it be doubted that if the note were 
 sued upon in another state where usury 
 did not invalidate the security the plea of 
 res adjudicata would be sustained upon tlie 
 ground that the rights of the parties had been 
 definitely fixed in the suit for the foreclosure 
 of the mortgage ? It seems to me the same 
 rule applies in this case. So long as no pro- 
 ceedings are taken, the marriage would re- 
 main valid both by the laws of, Connecticut 
 and of New York. But if a suit be instituted 
 by either party, by the husband for a divorce 
 or by the wife for a maintenance, and the 
 question of marriage or no marriage be made 
 an issue, and decided in the case first brought, 
 that decree is forever binding upon both par- 
 ties. Had the wife in this case brought suit 
 to dissolve the marriage, or for a mainte- 
 nance in affirmation of the marriage, the de- 
 cree of the court in New York would have 
 been as binding upon the court in Connecti- 
 cut as the decree obtained in Connecticut 
 ought to be upon the wife in New York. 
 
 ■The cases in the state courts, with a few 
 exceptions, hereinafter noted, overwhelmingly 
 preponderate in holding that where the plain- 
 tiff has acquired a bona fide domicil in a par- 
 ticular state he may lawfully appeal to the 
 courts of that state for a dissolution of the 
 marriage tie, for the causes permitted by its 
 statutes, and may call in the nonresident de- 
 fendant by publication. To abstract all these 
 cases would unduly prolong this Opinion. 
 
 In many of them the full faith and credit 
 clause of the Constitution does not seem to 
 have been called to the attention of the court, 
 and the case was disposed of upon principles 
 of comity, [618] which give to the court a 
 certain latitude of discretion, whereas, under 
 the full faith and credit clause, the considera- 
 tion given to a decree in the state where it is 
 rendered is obligatory in every other state. 
 
 One of the earliest of these cases is that of 
 Harding v. Alden, 9 Me. 140, in which the 
 parties separated, the husband going to 
 North Carolina and the wife to Rhoae Island. 
 She began proceedings there, which cul- 
 minated in a divorce for adultery committed, 
 in North Carolina, the husband having been 
 personally cited to appear, but refusing to do, 
 so. The divorce was held to be valid, the 
 court observing that ■' the protection of inno- 
 cent parties and the purity of public morals 
 require that divorces lawfully pronounced in 
 one jurisdiction, and the new relations there- 
 upon formed, should be recognized as opera- 
 tive and binding everywhere," in the absence 
 of fraud or collusion. The ruling was that 
 
HADDOCK V. HADDOCK. 
 201 U. S. 562. 
 
 21 
 
 tbs wif« -vrai wititlad to dower in lands of 
 whieh th« husband was seized during cov- 
 erture, the statute expressly giving the right 
 where divorce was decreed for the cause of 
 adultery, as if the husband were dead. 
 
 In Barber v. Root, lO Mass. 260, the parties 
 originally domiciled in Massachusetts re- 
 moved to Vermont, and established a perma- 
 nent domieil there. The court, while repu- 
 diating the idea that a divorce could be 
 granted to a person who was not domiciled in 
 Vermont, held the divorce to be good. 
 
 In Hood V. Hood, 11 Allen (Mass.) 196, a 
 divorce obtained in Illinois by the husband 
 for desertion, upon notice by publication in a 
 newspaper, was held to be valid as against 
 the wife, although she was then living in 
 Massachusetts under an agreement on his part 
 to pay her a certain sum per week; and al- 
 though she had no actual notice of the pro- 
 ceedings, and was not in Illinois during the 
 pendency thereof. It was further held that 
 she could not, in a libel for divorce brought 
 by her in Massachusetts, offer evidence that 
 the Illinois decree was obtained by fraud, 
 and upon facts which would not entitle her 
 to a divorce in Massachusetts. In a subse- 
 quent case between the same parties, [619] 
 110 Mass. 463, the court again decided that 
 the Illinois decree could not be impeached, and 
 that she was not entitled to dower in any 
 lands of which the husband was seized during 
 the coverture. 
 
 The whole subject was very carefully con- 
 sidered in Burlen v. Shannon, 115 Mass. 438, 
 which was an action against the husband for 
 board furnished the wife. The husband, 
 whose wife was living apart from him with- 
 out justifiable cause, removed to Indiana, ac- 
 quired a domieil there, and obtained a decree 
 of divorce by publication and by leaving a 
 summons at her abode in Massachusetts. The 
 divorce was held to be valid in Massachusetts 
 as to all persons, although the wife had never 
 been in Indiana, never appeared in the suit 
 there, had no knowledge that her husband 
 contemplated going to that state or had left 
 Massachusetts, until after he had filed his 
 libel for divorce. The authorities are re- 
 viewed by Mr. Justice Gray, and the conclu- 
 sioif reached that the divorce in Indiana was 
 valid. 
 
 Commington v. Belchertown, 149 Mass. 223, 
 21 N. E. Rep. 435, was an action to recover 
 expenses incurred by the plaintiff for the sup- 
 port of an insane pauper. The husband had 
 removed to another state and procured a de- 
 cree annulling the marriage on the ground of 
 fraud in concealing from him the fact of in- 
 sanity before their marriage. Notice of the 
 proceedings was served upon her, but she was 
 not represented, and it was held that the 
 decree was insufficient to annul her marriage 
 in Massachusetts. It was held, under the 
 familiar rule that the jurisdiction of the 
 foreign court may be inquired into, that the 
 wife, when the proceedings were commenced 
 and concluded, was utterly insane, and that 
 the record of the New York courts showed 
 her to have been so, and that no guardian was 
 appointed. The case was disposed of as one 
 
 over which the New York court had aequired 
 no jurisdiction. It does not qualify in any 
 way the previous ease of Burlen v. Shannon. 
 
 The case of Ditson v. Ditson, 4 R. I. 87, is 
 directly in point, and I understand it to be so 
 admitted. It was held that a [620] divorce 
 in Rhode Island on the ground of desertion 
 was valid, though the husband had never 
 been within the jurisdiction of Rhode Island, 
 and only constructive notice of the pendency 
 of the petition had been given him. 
 
 The rule in Kentucky is settled in Rhyms 
 V. Rhyms, 7 Bush (Ky.) 316, in which a 
 wife proceeded against her husband as a non- 
 resident by a warning order, and it was held 
 that the court had jurisdiction to grant her 
 a divorce. Chief Jusiiee Robertson remarking: 
 " It would be a reproach to our legislation if 
 a faithless husband in Kentucky could by 
 leaving the state deprive his abandoned wife 
 of the power to obtain a divorce at home." 
 In Hawkins v. Ragsdale, 80 Ky. 353, it was 
 held that a divorce obtained by the husband 
 in Indiana by constructive service determined 
 the status of the party in Kentucky, and that 
 under the statutes of that state it barred all 
 claim to curtesy or dower in Kentucky lands. 
 To the same effect is Perzel v. Perzel, 91 Ky. 
 634, 15 S. W. Rep. 658. 
 
 The law of California is settled in Matter 
 of Newman, 75 Cal. 213, 16 Pac. Rep. 887, to 
 the effect that a suit for divorce, so far as it 
 affects the status of the parties and the cus- 
 tody of their children, is a proceeding in rem, 
 and service by publication on a nonresident 
 defendant is good. This ruling was repeated 
 in Matter of James, 99 Cal. 374, 33 Pac. Rep. 
 1122, where it is declared that such decree 
 is equally valid in other states. 
 
 Nowhere is the rule more strongly asserted 
 than in Tennessee, where a, decree obtained 
 in Illinois by publication was sustained in 
 Thorns V. King, 95 Tenn. 60, 31 S. W. Rep. 
 983, and where it seems to have been held that 
 the decree could not be impeached, even by 
 showing the absence of necessary residence. 
 
 In Cooper v. Cooper, 7 Ohio (pt. ii) 238, 
 it was held that a divorce granted in Indiana 
 precluded an application for a divorce and 
 alimony in Ohio. In Cox v. Cox, 19 Ohio St. 
 502, the validity of a foreign decree of divorce 
 obtained by constructive service, except so far 
 as regarded the question of alimony, was sus- 
 tained. The same ruling was made in Doerr 
 V. Forsythe, 50 Ohio St. 726, 35 N. E. Rep. 
 1055, holding that while the Indiana divorce 
 was good, [621] it did not affect the property 
 rights of the wife in the state of Ohio. 
 
 The rule in Missouri is stated in Gould v. 
 Crow, 57 Mo. 200, that a divorce regularly 
 obtained by the husband in Indiana on an or- 
 der of publication operates as a divorce in his 
 favor in Missouri, so as to prevent his wife 
 from claitaiing dower in lands owned by him 
 in that state. The decree so pronounced is a 
 judgment in rem and is valid everywhere un- 
 der the Constitution and laws of the United 
 States. A like ruling was made in Anthony 
 V. Rice, 110 Mo. 223, 19 S. W. Rep. 423. 
 
 The law in Kansas is settled in Rodgers v. 
 Rodgers, 56 Kan. 483, 43 Pac. Rep. 779, to 
 
22 
 
 5 A. & E. ANN. CAS. 
 
 the effect that the courts of a sister state may 
 dissolve a marriage relation between a hus- 
 band domiciled there and a wife domiciled in 
 Kansas, by publication, although unknown to 
 her; but that such courts have no power to 
 settle the title of lands in Kansas or control 
 the custody of children residing there. But 
 it was also decided in Chapman v. Chapman, 
 48 Kan. 636, 29 Pac. Rep. 1071, that a wife 
 having obtained a divorce in Ohio upon ser- 
 vice by publication, was not entitled to dower 
 in lands in 'Kansas fraudulently conveyed by 
 her husband in fraud of her or others. 
 
 In Smith v. Smith, 43 La. Ann. 1140, 10 
 So. Rep. 248, it is held that a wife may ac- 
 quire a separate domicil from that of her 
 husband where his conduct has been such as 
 to furnish ground for divorce, and her mar- 
 riage status becomes subject to the jurisdic- 
 tion of that domicil, and that the courts 
 thereof may grant a divorce upon actual or 
 constructive notice. The right of the Louis- 
 iana courts to decree a divorce g,gainst an 
 absentee by means ot substituted service is 
 again affiilned in Butler v. Washington, 
 45 La. Ann. 279, 12 So. Rep. 356. 
 
 The law of Wisconsin is the same. Shafer 
 V. Bushnell, 24 Wis. 372; Cook v. Cook, 56 
 Wis. 195, 14 N. W. Rep. 33, 443, though in 
 the latter case the right of the wife to an 
 interest in her husband's lands in Wisconsin 
 was preserved. 
 
 In Thompson v. State, 28 Ala. 12, the right 
 of the husband to emigrate and acquire a new 
 .domicil and procure a [622] divorce upon 
 publication in the state of his domicil was 
 also affirmed. See also Turner v. Turner, 44 
 Ala. 437. In the latter case it is indicated 
 that a foreign divorce did not settle the rights 
 of the wife to dower in his lands, or any other 
 interests of a pecuniary character. 
 
 In Kline v. Kline, 57 Iowa 386, 10 iST. W. 
 Rep. 825, a decree rendered in another state 
 on service by publication was recognized, ex- 
 cept so far as it attempted to fix the custody 
 of the minor children. In Van Orsdal v. Van 
 Orsdal, 67 Iowa 35, 24 N. W. Rep. 579, the 
 property rights of the wife were recognized, 
 but this right was limited to property within 
 the state, and which the husband owned at 
 the time of the divorce, and not to what he 
 subsequently acquired. In this case it was 
 said: "The divorce was granted * * * in 
 May, 1880. In November, 1881, the defend- 
 ant's father died in this state, possessed of 
 certain property which the defendant inher- 
 ited. Now, while it may be that the plaintiff 
 might be entitled to alimony if the defendant 
 had owned property in the state at the time 
 the divorce was procured in Nebraska, she 
 cannot be so entitled because he has subse- 
 quently acquired property. The plaintiff, if 
 entitled to alimony, was entitled at the time 
 the divorce was granted. The relation of hus- 
 band and wife tlien ceased, and neither party 
 is entitled to any share or interest in prop- 
 erty which mav be subsequently acquired." 
 
 in Indiana the right of a wife domiciled 
 there to a divorce against the husband who 
 never resided in that state, and upon whom 
 service was only obtained by publication, is 
 
 recognized in Tolen v. Tolen, 2 Blackf. (Ind.) 
 407; Hood v. State, 56 Ind. 263; and in 
 Hilbish V. Hattle, 145 Ind. 59, 44 N. B. Rep. 
 20, it was held that the wife had no rights- in 
 his property by virtue of her marriage rela- 
 tions with the husband, though the court did 
 not in the divorce proceedings adjudicate the 
 property rights of the parties. 
 
 In Garner v. Garner, 56 Md. 127, the power 
 to grant a divorce against a nonresident, 
 upon whom process had not been served, was 
 recognized, but the right to a decree that the 
 nonresident should not marry again was de- 
 nied. 
 
 [623] In Thurston v. Thurston, 58 Minn. 
 279, 59 N. W. Rep. 1017, the divorce was rec- 
 ognized, though process was served outside 
 of the state. But it was held that the ques- 
 tion of alimony was not res adjudicata by 
 reason of the judgment. The wife was 
 allowed alimony out of property in Minne- 
 sota. 
 
 The validity of foreign divorces obtained 
 without personal service is recognized in Illi- 
 nois, in Knowlton v. Knowlton, i55 111. 158, 
 39 N. E. Rep. 595, and in Dunham v. Dun- 
 ham, 162 111. 589, 44 N. E. Rep. 841. 
 
 The law in New Jersey appeared at one 
 time to favor the contention of the wife in 
 this case. The gist of the decisions seemed 
 to be that a foreign decree is enforceable in 
 another state only on the ground of comity. 
 This was indicated in Doughty v. Doughty, 28 
 N. J. Eq. 581, though the decree in that case 
 was held to have been obtained by fraud. It 
 was admitted that the decree obtained by the 
 husband in Illinois was lawful and binding 
 there, but it was held that it did not change 
 the status of the wife in New Jersey, her cit- 
 izenship there being admitted. The case was 
 properly decided on the ground that the hus- 
 band went to Illinois to obtain a divorce, and 
 acquired no bona fide domicil there. The 
 same rule was' recognized in Flower v. Flower, 
 42 N. J. Eq. 152, 7 Atl. Rep. 669. These 
 cases,\ however, seem to have been overruled 
 in Felt v. Felt, 59 N. J. Eq. 606, 45 Atl. Rep. 
 105, 49 Atl. Rep. 1071, where it was held that 
 the domicil of the complainant in a foreign 
 state was sufficient to give jurisdiction, not- 
 withstanding the defendant had not been 
 served with process there. The court remarked 
 in this ease: "A condition of .the law which 
 makes the intercourse of a man and woman 
 either legitimate or adulterous as they hap- 
 pen to be within the limits of one state or an- 
 other is not to be tolerated any further than 
 is plainl'- required by public policy." This 
 case evidently puts New Jersey in line with 
 the vast majority of .ther states. 
 
 The cases of New York upon this subject 
 are numerous and perhaps not wholly recon- 
 cilable, but we think that the law, as sum- 
 marized in the last case of Winston v. Win- 
 ston, 165 N. Y. 553, 59 N. E. Rep. 273, is ad- 
 verse to the validity of a divorce obtained in 
 another state without service of process within 
 the jurisdiction. Of [624] the same tenor 
 are the cases in Pennsylvania: Colvin v. 
 Reed, 55 Pa. St. 375; Reel v. Elder, 62 Pa. 
 St. 308. North Carolina: Irby v. Wilson, 
 
HADDOCK V. haddock:. 
 Wl V. 8. 562. 
 
 23 
 
 1 Dev. & B. Eq. (21 N. Car.) 568; Harris v. 
 Harris, 115 N. Car. 587, 20 S. E. Rep. 187. 
 South Carolina: McCreery v. Davis, 44 S. 
 Car. 195, 22 S. E. Rep. 178. 
 
 The law in this country then may be sum- 
 marized as follows : In Maine, Massachusetts, 
 Rhode Island, Kentuclcy, California, Tennes- 
 see, Ohio, Missouri, Kansas, Louisiana, Wis- 
 consin, Alabama, Iowa, Indiana, Maryland, 
 Minnesota, Illinois, and New Jersey, the, valid- 
 ity of a divorce obtained in another state by a 
 party there domiciled, in a proceeding where 
 constructive service upon the defendant only 
 is obtained, is fully recognized. In Ohio, 
 Iowa, and Minnesota, and perhaps also Louis- 
 iana and Alabama, her right to alimony and 
 to dower is preserved. But the very cases 
 which limit the effect of the divorce, so far 
 as property rights are concerned, restrict such 
 rights to dower in lands of which the hus- 
 band was seized during coverture, and infer- 
 entialjy at least to alimony from such prop- 
 erty. It is also limited to property within 
 the state where suit is brought. That her 
 rights in her husband's property should ex- 
 tend to property acquired by him long after 
 the divorce is nowhere indicated. 
 
 The only states in which it is held that a 
 party domiciled in another state may not 
 obtain a divorce there by constructive ser- 
 vice are New York, Pennsylvania, North and 
 South Carolina. 
 
 A proceeding for divorce is a suit in rem, 
 with which is often incorporated a suit in 
 personam,. The res is aptly stated in Ellison 
 V. Martin, 53 Mo. 575, as " the status of the 
 plaintiff in relation to the defendant to be 
 acted on by the court. This relation being 
 before the court in the person of the plaintiff, 
 the court acts on it, and dissolves it by a 
 judgment of divorce." The fact subsequently 
 ascertained, that it may have been procured 
 by fraud or false testimony, is wholly beside 
 the question, as we shall hereafter show. 
 The fact that the husband changed his domi- 
 cil to another state, after the cause of action 
 [625] arose, is also immaterial. The status 
 of the husband in this case was irrevocably 
 fixed Tjy the decree. It is unnecessary to con- 
 sider how far it affected the status of the 
 wife in New York, which, in respect to other 
 questions, may be subject to the local law; 
 but her relations as against her husband are 
 controlled by the decree which fixed his 
 status. Indeed, it would be a reproach to our 
 jurisprudence if an injured party residing in 
 one state could not obtain a decree from the 
 other party, without pursuing the offending 
 party into another and distant state where 
 he or she may have chosen to establish a 
 domicil. 
 
 In this case the referee reported that the 
 defendant abandoned the plaintiff without 
 cause or justification. An exception was 
 taken to this report, and the testimony was 
 Bent up, which shows that the parties sepa- 
 rated on the day of their marriage and have 
 never lived together since. The J;estimony 
 leaves it doubtful whether it was a case of 
 abandonment or of separation by mutual con- 
 sent. It does, however, show that plaintiff 
 
 took no steps to assert her marital rights for 
 twenty-six years after her marriage. Her 
 husband having in the meantime inherited a 
 large amount of property from his father, she 
 began suit for divorce a, mensa et thoro and 
 an allowance of alimony. This suit, how- 
 ever, was ineffectual so far as respects the 
 alimony, as no personal service was obtained. 
 She waited again for five years and began 
 this proceeding, both for a separation, which 
 she had already obtained, and for alimony. . 
 
 We think the defendant may lawfully reply 
 thus : " You are pursuing me as your hus- 
 band for a separation de jure which has ex- 
 isted for thirty-one years de facto, and since 
 1894 de jure, and for an alimony which is ob- 
 
 3usly the sole object of your proceeding. 
 Your only claim against me is as your hus- 
 band. I am not your husband. Twenty-three 
 years ago the Superior Court of Litchfield 
 county, Connecticut, in which state I had an 
 actual and bono fide domicil, and which had 
 had sole jurisdiction over my marital status 
 for twelve years, liberated me from the bonds 
 of matrimony and pronounced me a free man. 
 In the meantime I have married another 
 woman, and if your 1.626] position be a 
 sound one, I am, at least in the state of New 
 York, a bigamist, and my wife an adulteress." 
 It is difficult to conceive of a case calling 
 more loudly for the application of the general 
 doctrine. 
 
 As no question is made as to the validity of 
 the Connecticut decree and its legal effect in 
 that state, and as this court has repeatedly 
 decided that, under the full faith and credit 
 clause of the Constitution, a judgment con- 
 clusive in the state where it is rendered is 
 equally conclusive everywhere in the courts of 
 the United States (Cheeverw. Wilson, 9 Wall. 
 (U. S.) 108; Mills v. Duryee, 7 Cranch (U. 
 S.) 481; D'Arcy v. Ketchum, 11 How. (U. 
 S.) 165) , I do not understand how this decree 
 can be denied the same effect in New York 
 that it has in Connecticut without disregard- 
 ing the constitutional provision in question. 
 The result is that the husband, freed from the 
 bonds of matrimony in Connecticut, was at 
 liberty to contract another marriage there, 
 while the wife cannot even at this late day 
 contract another marriage in New York with- 
 out being guilty of adultery. 
 
 3. It is insisted, however, that the decree 
 of the Connecticut court was obtained by the 
 fraud of Haddock in stating in his com- 
 plaint that his wife had deserted him, when, 
 in the present case, it appears from his own 
 testimony that he, in fact, abandoned and 
 refused to live with her, or that they sepa- 
 rated by mutual consent. 
 
 The evidence upon which the Connecticut 
 decree was granted does not appear in the 
 record, and it is possible that the case was 
 made out by the testimony of other witnesses. 
 But, however that may be, this decree cannot 
 be impeached by evidence that it was obtained 
 by false testimony, even though it be testi- 
 mony of the plaintiff in that proceeding and 
 the defendant in this. Hood v. Hood, 11 
 Allen (Mass.) 196, in which it was held 
 that "both parties had their domicil in that 
 
24 
 
 5 A. & E. ANN. CAS. 
 
 state (Illinois), and were subject to the ju- 
 risdiction of the court in which the libel was 
 filed. ♦ » * But the fact of desertion (by 
 the wife) was conclusively settled between the 
 parties by the judgment in Illinois ; and it is 
 not now competent for the libelant to 
 [627] contradict that judgment." See 
 same case, 110 Mass. 463. 
 
 The rule is well settled that while a judg- 
 ment or decree may sometimes be impeached 
 . for fraud, it can only be for a fraud ■extrinsic 
 to the cause — as, that the judgment was 
 eollusively obtained to defraud some other 
 person, and that it cannot be im- 
 peached by either of the parties there- 
 to by reason of false testimony given at 
 the time, or which must have been given to 
 establish the plaintiff's case, or even by per- 
 jury of one of the parties thereto. Granting 
 that the testimony shows the absence of good 
 faith, and even perjury, on the part of the 
 husband in the Connecticut suit, the decree 
 cannot be opened for that reason, or for any 
 reason, which would not logically involve a 
 re-examination of the entire facts upon which 
 the decree is obtained. Christmas v. Russell, 
 5 Wall. (U. S.) 290; U. S. v. Throckmorton, 
 98 U. S. 61; Simms v. Slacum, 3 Craneh (U. 
 S.) 300; Ammidon v. Smith, 1 Wheat. 
 (U. S.) 447; Smith v. Lewis, 3 Johns. (N. Y.) 
 157; Marriott v. Hampton, 7 T. R. 265; De- 
 merit V. Lyford, 27 N. H. 541, 546; Peck v. 
 Woodbridge, 3 Day (Conn.) 30; Dilling v. 
 Murray, 6 Ind. 324; Homer v. Fish, 1 Pick. 
 (Mass.) 435; Lewis v. Rogers, 16 Pa. St. 18; 
 Sidensparker v. Sidensparker, 52 Me. 481; 
 Boston, etc., R. Corp. v. Sparhawk, 1 Allen 
 (Mass.) 448; Damport v. Sympson, Cro. Eliz. 
 520; Eyres v. Sedgewicke, Cro. Jac. 601; 
 Mason v. Messenger, 17 Iowa 261, 272 ; White 
 V. Merritt, 7 N. Y. 352. 
 
 When it is considered that the status of 
 the defendant was fixed by the decree of the 
 Connecticut court in 1881, in a. proceeding of 
 which his wife had due notice, that upon the 
 faith of this decree he remarried the follow- 
 ing year, and that the plaintiff made no move 
 to establish her conjugal rights for thirteen 
 years thereafter, and for twenty-six years 
 after her marriage, the injustice of holding 
 all these proceedings to be null and' void, 
 even upon the assumption of perjury com- 
 mitted by the defendant, becomes the more 
 manifest. We think that at least the record 
 should have been received. 
 
 I regret that the court in this case has 
 taken what seems to [628] me a. step back- 
 ward in American jurisprudence, and has vir- 
 tually returned to the old doctrine of comity, 
 which it was the very object of the full faith 
 and credit clause of the Constitution to super- 
 sede. 
 
 Holmes, J. (with whom concurred Haelan, 
 Bbeweb, and Beown, J.J., dissenting) . — 
 I do not suppose that civilization will come 
 to an end whichever way this case is decided. 
 But as the reasoning which prevails in the 
 mind of the majority does not convince me, 
 and as I think that the decision not only re- 
 verses a previous well-considered decision of 
 
 this court but is likely to cause considerable 
 disaster to innocent persons and to bastardize 
 children hitherto supposed to be the offspring 
 of lawful marriage, I think it proper to ex- 
 press my views. Generally stated, the issue 
 is whether, whan a husband sues in the court 
 of his domicil for divorce from an absent wife 
 on the ground of her desertion, the jurisdic- 
 tion of the court, if there is no personal ser- 
 vice, depends upon the merits of the case. 
 If the wife did desert her husband in fact, or 
 if she was served with process, I understand 
 it not to be disputed that a decree of divorce 
 in the case supposed would be conclusive; and 
 so I understand it to be admitted that if the 
 coujt of another state on a retrial of the 
 ' nerits finds them to have been decided rightly, 
 its duty will be to declare the decree a bar to 
 its inquiry. The first form of the question 
 is whether it has a right to inquire into the 
 merits at all. But I think that it will ap- 
 pear directly that the issue is narrower even 
 than that. 
 
 In Atherton v. Atherton, 181 U. S. 155, 21 
 U. S. Sup. Ct. Rep. 544, a divorce was 
 granted, on the ground of desertion, to a hus- 
 band in Kentucky against a wife who had 
 established herself in New York. She did not 
 appear in the suit, and the only notice to her 
 was by mail. Before the decree was made 
 she sued in New York for a divorce from bed 
 and board, but pending the latter proceedings 
 the Kentucky suit was brought to its end. 
 The husband appeared [629] in New York 
 and set up the Kentucky decree. The New 
 York court found that the wife left her hus- 
 band because of his cruel and abusive treat- 
 ment, without fault on her part, held that 
 the Kentucky decree was no bar, and granted 
 the wife her divorce from bed and board. The 
 New York decree, after being^ affirmed by the 
 Court of Appeals, was reversed by this court 
 on the ground that it did not give to the 
 Kentucky decree the faith and credit which 
 it had by law in Kentucky. Of course, if 
 the wife left her husband because of his 
 cruelty and without fault on her part, a» 
 found by the New York court, she was not 
 guilty of desertion. Yet this court held that 
 the question of her desertion was not open, 
 but ^A'as conclusively settled by the Kentucky 
 d eeree. 
 
 There is no difference, so far as I can see, 
 between Atherton v. Atherton and the present 
 case, except that in Atherton v. Atherton 
 the forum of the first decree was that of the 
 matrimonial domicil, whereas in this the 
 court was that of a domicil afterwards ac- 
 quired. After that decision any general ob- 
 jection to the effect of the Connecticut decree 
 on the ground of the wife's absence from the 
 state comes too late. So does any general ob- 
 jection on the ground that t<j give it effect 
 invites a race of diligence. I therefore pass' 
 such arpfuments without discussion, although 
 they seem to me easy to answer. Moreover, 
 Atherton v. Atherton decides that the juris- 
 diction of the matrimonial domicil, at least, 
 to grant a divorce for the wife's desertion 
 without personal service, does not depend 
 upon the fact of her desertion, but continues 
 
HADDOCK V. HADDOCK. 
 201 V. -S. 5r32. 
 
 25 
 
 even if her husband's cruelty has driven her 
 out of the state and she has acquired a sepa- 
 rate domicil elsewhere upon the principles 
 which we all agree are recognized by this 
 court. 
 
 I can see no ground for giving a less effect 
 to the decree when the husband changes his 
 dotnicil after the separation has taken place. 
 The question whether such a decree should 
 have a less effect is the only question open, 
 and the issue is narrowed to that. No one 
 denies that the husband may sue for divorce 
 in his new domicil, or, as I have said, that if 
 he gets a decree when [630] he really has 
 been deserted, it will be binding everywhere. 
 Hawkins v. Ragsdale, 80 Ky. 353, cited 181 
 U. S. 162; Cheely v. Clayton, 110 U. S. 701, 
 705, 4 U. S. Sup. Ct. Eep. 328. It is unneces- 
 sary to add more cases. The only reason 
 which I have heard suggested for holding the 
 decree not binding as to the fact that he was 
 deserted is that if he is deserted his power 
 over the matrimonial domicil remains so that 
 the domicil of the wife accompanies him 
 wherever he goes,' whereas if he is the de- 
 serter he has no such power. Of course this 
 is >• pure fiction, and fiction always is a poor 
 ground for changing substantial rights. It 
 seems to me also an inadequate fiction, since 
 by the same principle, if he deserts her in 
 the matrimonial domicil, he is equally power- 
 less to keep her domicil there if she moves 
 into another state. The truth is that juris- 
 diction no more depends upon both parties 
 having their domicil within the state, than it 
 does upon the presence of the defendant there, 
 as is shown not only by Atherton v. Atherton, 
 but by the rights of the wife in the matri- 
 monial domicil when the husband deserts. 
 
 There is no question that a husband may 
 establish a, new domicil for himself, even if 
 he has deserted his wife. Yet in these days 
 of equality I do not suppose that it would be 
 doubted that the jurisdiction of the court of 
 the matrimonial domicil to grant a divorce 
 for the desertion remained for her, as it would 
 for him in the converse case. See Cheever v. 
 Wilson, 9 Wall. (U. S.) 108. Indeed, in Dit- 
 son V. Ditson, 4 R. I. 87, which, after a quota- 
 " tion of Judge Cooley's praise of it, is stated 
 and relied upon as one of the pillars for the 
 decision of Atherton v. Atherton, a wife was 
 granted a divorce, without personal service, 
 in the state of a domicil acquired by her after 
 separation, on the sole ground that in the 
 opinion of the court its decree would be bind- 
 ing everywhere. If that is the law it disposes 
 of the case of a husband under similar cir- 
 cumstances, that is to say of the present case, 
 a fortiori; for I suppose that the notion that 
 a wife can have a separate domicil from her 
 husband is a modern idea. At least Ditson 
 V. Ditson confirms the assumption that juris- 
 diction is not dependent on the wife's actually 
 residing in [631] the same state as her hus- 
 band, which has been established by this 
 court. Atherton v. Atherton. 181 U. S. 155, 
 21 U. S. Sup. Ct. Rep. 544 ; Maynard v. Hill, 
 125 U. S. 190, 8 U. S. Sup. Ct. Eep. 723; 
 Cheever v. Wilson, 9 Wall. (U. S.) 108. 
 When that assumption is out of the way, I 
 
 repeat that I cannot see any ground for dis- 
 tinguishing between the extent of jurisdiction 
 in the matrimonial domicil and that, admitted 
 to exist to some extent, in a domicil later ac- 
 quired. I also repeat and emphasize that if 
 the finding of a second c»urt, contrary to the 
 decree, that the husband was the deserter, 
 destroys the jurisdiction of a later-acquired 
 domicil because the domicil of the wife does 
 not follow his, the same fact ought to destroy 
 the jurisdiction in the matrimonial domicil 
 if in consequence of her husband's conduct 
 the wife has left the state. But Atherton v. 
 Atherton decides that it does not. 
 
 It is important to bear in mind that the 
 present decision purports to respect and not 
 to overrule Atherton v. Atherton. For that 
 reason, among others, I spend no time in 
 justifying that case. And yet it appears to 
 me that the whole argument which prevails 
 with the majority of the court is simply an 
 argument that Atherton v. Atherton is wrong. 
 I have tried in vain to discover anything tend- 
 ing to show a distinction between that case 
 and this. It is true that in Atherton v. 
 Atherton Mr. Justice Gray confined the 
 decision to the case before the court. Evi- 
 dently, I should say, from internal evidence, 
 in deference to scruples which he did not 
 share. But a court by announcing that its 
 decision is confined to the facts beiore it 
 does not decide in advance that logic will 
 not drive it further when new facts arise. 
 New facts have arisen. I state what logic 
 seems to me to require if that case is to stand, 
 and I think it reasonable to ask for an articu- 
 late indication of how it is to be dis- 
 tinguished. 
 
 I have heard it suggested that the differ- 
 ence is one of degree. I am the last man in 
 the world to quarrel with a distinction simply 
 because it is one of degree. Most distinctions, 
 in my opinion, are of that sort, and are none 
 the worse for it. But the line which is 
 dravm must be justified by the fact that it is 
 [632] a little nearer than the nearest op- 
 posing case to one pole of an admitted an- 
 tithesis. When a crime is made burglary by 
 the fact that it was committed thirty seconds 
 after one hour after sunset, ascertained ac- 
 cording to mean time in the place of the act, 
 to take an example from Massachusetts (R. 
 L., u. 219, § 10), the act is a little nearer to 
 midnight than if it had been committed one 
 minute earlier, and no one denies that i there 
 is a difference between night and day. The 
 fixing of a point when day ends is made in- 
 evitable l^y the admission of that difference. 
 But I can find no basis for giving a greater 
 jurisdiction to the courts of the husband's 
 domicil wiien the married pair happens to 
 have resided there for a month, even if with 
 intent to make it a permanent abode, than if 
 they had not lived there at all. 
 
 I may add, as a. consideration distinct from 
 those which I have urged, that I am unable 
 to reconcile with the requirements of the 
 Constitution, article IV, section 1, the no- 
 tion of a judgment being valid and binding 
 in the state where it is rendered, and yet 
 depending for recognition to the same extent 
 
26 
 
 5 A. & E. ANN. CAS. 
 
 in other states of the Union upon the comity 
 of those states. No doubt some color for such 
 a notion may be found in state decisions. 
 State courts do not always have the Consti- 
 tution of the United States vividly present to 
 their minds. I am responsible for language 
 treating what seems to me the fallacy as 
 open, in Blackinton v. Blackinton, 141 Mass. 
 432, 436, 5 N. E. Rep. 830. But there is no 
 exception in the words of the Constitution. 
 " If the judgment is conclusive iii the state 
 where it was pronounced it is equally con- 
 clusive everywhere." Christmas v. Russell, 
 Wall. (U. S.) 290, 302; Marshall, C. J., in 
 Hampton v. M'Gonnell, 3 Whea,t. (U. S.) 
 234; Mills v. Duryee', 7 Cranch (U. S.) 481, 
 485; Story, Const.,'§ 1313. See also Hancock 
 Nat. Bank v. Farnum, 176 U. S. '640, 644, 645, 
 20 U. S. Sup. Ct. Rep. 506. I find no qualifi- 
 cation of the rule in Wisconsin v. Pelican Ins. 
 Co., 127 U. S. 265, 8 U. S. Sup. Ct. Rep. 
 1370. That merely decided, with regard to a 
 case not within the words of the Constitution, 
 that a state judgment could not be sued upon 
 when the facts which it established were not ' 
 a cause of action outside the state. It did 
 not decide or even remotely suggest that the 
 judgment [633] would not be conclusive as 
 to the facts if in any way those facts came in 
 question. It is decided as well as admitted 
 that a decree like that rendered in Conneeti- 
 , cut in favor of a deserting husband is bind- 
 ing in the state where it is rendered. May- 
 nard v. Hill, 125 U. S. 190, 8 U. S. Sup. Ct. 
 Rep. 723, I think it enough to read that case 
 in order to be convinced that at that time 
 the court had no thought of the divorce being 
 confined in its effects to the territory where 
 it was granted, and enough to read Atherton 
 V. Atherton to see that its whole drift and 
 tendency now are reversed and its necessary 
 consequences denied. 
 
 NOTE. 
 
 Validity of Foreign Divorce as De- 
 pendent upon Jurisdiction over' De- 
 fendant. 
 
 Scope op Note. 
 
 The sole purpose of this note is to discuss 
 the validity of a decree of divorce rendered 
 by a foreign court, in so far as the validity 
 is dependent upon the jurisdiction which the 
 court acquired over the defendant, when such 
 jurisdiction was acquired in the manner pro- 
 vided by the law of the sovereignty under 
 which the divorce was granted. In other 
 words, when a court of competent jurisdic- 
 tion, in which a suit for divorce is instituted, 
 acquires jurisdiction over the defendant in the 
 manner prescribed by the local law, has it 
 acquired such jurisdiction over the defendant 
 as entitles its decree of divorce to extra- 
 territorial recognition, assuming that the court 
 has jurisdiction of the subject-matter of the 
 divorce, that it has jurisdiction to grant a 
 divorce at the suit of the plaintiff, that the 
 . divorce is granted on a ground entitling it to 
 be recognized extraterritorially, and that the 
 proceedings are regular? 
 
 As to some phases of this question there 
 can be no serious difference of opinion. Thus, 
 it is not questioned that a foreign divorce is 
 
 valid if both of the parties were domiciled 
 within the territorial jurisdiction of the court, 
 whether the service of process upon the de- 
 fendant was actual or constructive. Nor is it 
 questioned that a foreign divorce is valid if 
 it was granted against a nonresident defend- 
 ant who was personally served with process 
 within the territorial jurisdiction of the court 
 or who entered an appearance in the suit.- 
 There is no doubt, either, that a foreign di- 
 vorce is invalid if neither of the parties was 
 domiciled within the jurisdiction of the court, 
 and the decree was based upon constructive 
 service only. But the question as to the extra- 
 territorial effect of a divorce granted in favor 
 of a plaintiff domiciled within the court's 
 jurisdiction and against a nonresident defend- 
 ant has given rise to such a decided difference 
 of opinion that the authorities are in hopeless 
 and irreconcilable conflict, as will be shown. 
 
 The question whether the spouse seeking the 
 divorce had acquired a domicil separate from 
 that of the other spouse will not be considered, 
 as it relates to the jurisdiction of the court 
 to -entertain a suit brought by the plaintiff, 
 and not to the acquisition of jurisdiction over 
 the defendant. 
 
 Domicil of Both Parties in State of 
 Forum. 
 
 Where both spouses are domiciled in' the 
 same state, a valid divorce granted one of 
 thfim by the courts of that state, pursuant to 
 personal service of process on the other, is 
 valid in every other state. Barber v. Root, 10 
 Mass. 260. 
 
 A divorce granted by the courts of one state 
 in favor of a domiciled citizen and against a 
 domiciled citizen of the state, upon substituted 
 service of process such as the laws of the 
 state authorize in the case of an absent de- 
 fendant, is valid in personam so as to effect a 
 dissolution of the marriage contract, and is 
 conclusive upon the defendant in the courts 
 of another state, though he was not within 
 the territorial jurisdiction of the state which 
 granted the divorce during the progress of 
 the suit and did not enter an appearance 
 therein. Hunt «. Hunt, 72 N. Y. 217 ; Matter 
 of Denick, 92 Hun (N. Y.) 161, 36 N. Y. Supp. 
 518; Lacey v. Lacey, (Supm. Ct. Spec. T.) 
 77 N. Y. Supp. 235, 38 Misc. (N. Y.) 196. 
 See also Campbell v. Campbell, 90 Hun (N. 
 Y.) 233, 35 N. Y. Supp. 280, 693; Matter of 
 Morrisson, 52 Hun (N. Y.) 102, 5 N. Y. 
 Supp. 90. This is on the principle that the 
 court which granted the divorce had juris- 
 diction of both the subject-matter and the 
 parties to the suit, and the decree therefore 
 is a judgment entitled to full faith and credit 
 in every other state. Hunt v. Hunt, 72 N. Y. 
 217. 
 
 Such a divorce is a bar to an action for 
 divorce subsequently brought by the defendant 
 in another state. Hunt v. Hunt, 72 N. Y. 217. 
 A subsequent marriage by the plaintiff is 
 valid, not only in the state where the divorce 
 was granted but in every other state. Matter 
 of Denick, 92 Hun (N. Y.) 161, 36 N. Y. 
 Supp. 518. When a wife, after procuring a 
 divorce in this manner, remarries, the decree • 
 is a good defense to an action brought against 
 her by her second husband to annul his mar- 
 riage on the ground that she had a husband 
 living at the time it was solemnized. Campbell 
 V. Campbell, 90 Hun (N. Y.) 233, 35 N. Y. 
 Supp. 280, 693. 
 
 In Atherton v. Atherton, 155 N. Y. 129, 49 
 N. E. Rep. 933, the court refused to recog- 
 nize the validity of a divorce granted in Ken- 
 
HADDOCK V. HADDOCK. 
 201 V. 8. 562. 
 
 27 
 
 tucky to a husband whose wife had abandoned 
 him and removed to New York, inasmuch as 
 only constructive service had been had upon 
 the wife ; and a divorce was granted to the 
 wife upon her petition. But that case was 
 reversed in Atherton v. Atherton, 181 U. S. 
 155, 21 U. S. Sup. Ct. Rep. 5-14, wherein the 
 court held that the Kentucliy decree was a 
 judgment entitled to full faith and credit in 
 every other state in the Union within the 
 meaning of the guaranty of the Constitution 
 of the United States. The Kentucky divorce 
 was granted on the ground of abandonment ; 
 and the basis of the decision of the United 
 States Supreme Court was that Kentucky had 
 always been the undoubted domicil of the hus- 
 band and was the only matrimonial domicil 
 of the husband and wife, that the wife re- 
 ceived the notice required by the Kentucky 
 statutes, and that therefore the Kentucky 
 courts had as complete jurisdiction to grant 
 the divorce as if the wife had been served 
 personally within the state or had voluntarily 
 appeared in the suit. The view of the court 
 was that to hold otherwise would be to make 
 it practically impossible for the husband to 
 obtain a divorce for abandonment when his 
 wife had left the state. The court distin- 
 guished the case decided from other cases, as 
 follows : " This case does not involve the 
 validity of a divorce granted, on constructive 
 service, by the court of a state in which only 
 one of the parties ever had a domicil ; nor 
 the question to .what extent the good faith of 
 the domicil may be afterwards inquired into. 
 In this case, the divorce in Kentucky was by 
 the court of the state which had always been 
 the undoubted domicil of the husband, and 
 which was the only matrimonial domicil of 
 the husband and wife. The single question to 
 be decided is the validity of that divorce, 
 granted after such notice had been given as 
 was required by the statutes of Kentucky." 
 
 In Hood V. Hood, 11 Allen (Mass.) 196, 
 where, after their marriage in Massachusetts, 
 a husband and wife removed to Illinois and 
 acquired a domicil there, and subsequently 
 the wife left her husband and returned to 
 Massachusetts, whereupon he was granted a 
 divorce upon constructive service and without 
 actual notice to the wife, it was held that the 
 divorce was valid in Massachusetts, as the 
 Illinois court had jurisdiction over both the 
 parties, it being considered as a matter of 
 law that both were domiciled in that state. 
 See also Hood v. Hood, 110 Mass. 463. In 
 Burlen v. Shannon, 115 Mass. 438, where a 
 husband and wife were domiciled in Massa- 
 chusetts, and the husband, after his wife had 
 left him without good cause, removed into 
 another state and acquired a domicil there in 
 good faith and not for the purpose of procur- 
 ing a divorce, it was held that a divorce sub- 
 sequently granted him in the foreign state 
 upon constructive service was valid in Massa- 
 chusetts and precluded the wife from main- 
 taining a suit for divorce there, as it was 
 considered that both spouses were domiciled 
 in the foreign state at the time the divorce 
 was granted. In Loker v. Gerald, 157 Mass. 
 42, 31 N. E. Rep. 709, where the facts were 
 the same as in Burlen v. Shannon, except that 
 the wife refused to follow her husband into the 
 foreign state, the same rule was laid down. 
 
 Domicil of Neither Party in State op 
 Forum. 
 
 Where both spouses are domiciled in one 
 state, the courts of that state will not recog- 
 nize as valid a divorce granted in another 
 
 state without personal service of process on 
 the defendant or an appearance by him. 
 Streitwolf v. Streitwolf, 181 U. S. 179, 21 
 U. S. Sup. Ct. Rep. 553 ; Bell v. Bell, 181 U. 
 S. 175, 21 U. S. Sup. Ct. Reu. 551 ; Strait v. 
 Strait, 3 MacArthur (D. C.) 415; Hoffman 
 V. Hoffman, 46 N. Y. 30; Wright v. Wright, 
 24 Mich. 180; Holmes v. Holmes, 4 Lans. (N. 
 Y.) 388; Leith v. Leith, 39 N. H. 20; Mc- 
 Giffert v. McGiffert, 31 Barb. (N. Y.) 69; 
 Hanover v. Turner, 14 Mass. 227. See also 
 Hood V. State, 56 Ind. 263 ; Lyon v. Lyon, 2 
 Gray (Mass.) 367; Smith v. Smith, 19 Neb. 
 706, 28 N. W. Rep. 296; Prosser v. Warner, 
 47 Vt. 667. This is also true of a divorce 
 granted in another country. De Meli v. De 
 Meli, 120 N. Y. 485, 24 N. E. Rep. 996 ; St. 
 Sure V. Lindsfelt, 82 Wis. 346, 52 N. W. Rep. 
 308. 
 
 Such a divorce is no bar to an action for 
 divorce brought in the state where the spouses 
 are domiciled by the original defendant. Bell 
 V. Bell, 181 U. S. 175, 21 U. S. Sup. Ct. Rep. 
 551; Strait v. Strait, 3 MacArthur (D. C.) 
 415 ; Hoffman v. Hoffman, 46 N. Y. 30 ; Smith 
 V. Smith, 19 Neb. 706, 28 N. W. Rep. 296; 
 Leith V. Leith, 39 N. H. 20; De Meli v. De 
 Meli, 120 N. Y. 485, 24 N. E. Rep. 996 ; Mc- 
 Giffert V. McGiffert, 31 Barb. (N. Y.) 69. 
 If the defendant remarries after the divorce, 
 the decree is no defense to a prosecution for 
 open and notorious fornication, in the state of 
 his domicil, based upon his remarriage during 
 the life of the defendant. Hood v. State, 56 
 Ind. 263. Nor does the decree bar a suit for 
 divorce brought by the original defendant and 
 based on the ground that the original plaintiff 
 committed adultery by remarrying. Smith v. 
 Smith, 19 Neb. 706, 28 N. W. Rep. 290; 
 Leith V. Leith, 39 N. H. 20. 
 
 The fact that the defendant was served in 
 the state of his domicil with the process of 
 the foreign court does not render the foreign 
 divorce valid. Holmes v. Holmes, 4 Lans. 
 (N. Y.) 388. 
 
 A decree for divorce rendered under such 
 circumstances is not entitled to recognition in 
 other states under the full faith and credit 
 clause of the Constitution of the United 
 States. Hood v. State, 56 Ind. 263 ; Wright v. 
 Wright, 24 Mich. 180. 
 
 Divobce Against Nonresident Personally 
 Served. 
 When a suit for divorce is instituted in a 
 state court of competent jurisdiction against 
 a nonresident, personal service of process on 
 the defendant gives the court jurisdiction of 
 the person of the defendant empowering it to 
 grant a divorce which will be valid not only 
 in that state but in every other state of the 
 Union. McGill v. Deming, 44 Ohio St. 645, 
 11 N. E. Rep. 118. So the decree is valid if 
 the respondent enters an appearance person- 
 ally or by attorney. Cheever v. Wilson, 9 
 Wall. (U. S.) 108; Jones v. JoneS, 108 N. Y. 
 415, 15 N. B. Rep. 707 ; Rigney v. Rigney, 127 
 N. Y. 408, 28 N. E. Rep. 405; Rich v. Rich, 
 88 Hun (N. Y.) 566, 34 N. Y. Supp. 854; 
 Arrington v. Arrington, 102 N. Car. 491, 9 
 S. E. Rep. 200; Bidwell v. Bidwell, 139 N. 
 Car. 402, 52 S. E. Rep. 55. And though a 
 decree for divorce is ineffectual as to the 
 defendant, a nonresident, because rendered 
 against him merely upon publication, he is 
 bound by a supplementary decree for alimony, 
 rendered against him upon motion after he 
 has appeared and contested the motion. 
 Lynde v. Lynde, 162 N. Y. 405, 56 N. E. Rep. 
 979. A decree for divorce rendered against 
 
2S 
 
 5 A. & E. ANN. CAS. 
 
 a noaresideut pursua«t t» appearsBce or per- 
 sonal seryice is a judgment entitled to pro- 
 tection under the full faith and credit clause 
 of the Constitution of the United States. 
 Cheever v. Wilson, 9 Wall. (U. S.) 108; 
 Lynde v. Lynde, 162 N. Y. 405, 56 N. E. Rep. 
 979; Rich v. Rich, 88 Hun (N. Y.) 566, 34 
 N. Y. Supp. 854; McGill v. Deming, 44 Ohio 
 St. 645, 11 N. B. Rep. 118 ; Matter of Bruyn, 
 (Surrogate Ct.) 17 Misc. (N. Y.) 481, 41 
 N. Y. Supp. 414. A foreign divorce granted 
 a wife upon her nonresident husband's appear- 
 ance cuts off his marital rights in her prop- 
 erty. Cheever v. Wilson, 9 Wall. (N. Y.) 
 108; Arrington v. Arrington, 102 N. Car. 
 491, 9 S. E. Rep. 200. On the other hand, 
 where there is a statute in the state of the 
 husband's domicil providing that where a di- 
 vorce is granted the wife " by reason of the 
 aggression of the husband ". she shall be en- 
 titled to dower, a divorce a vinculo granted 
 the wife on that ground in a foreigni state, 
 pursuant to personal service had upon the 
 husband, entitles her to dower in her husband's 
 real property located in the state of his domi- 
 cil ; and this though she marries another man , 
 after the divorce and before her first hus- 
 band's death. McGill v. Deming, 44 Ohio St. 
 645, 11 N. E. Rep. 118. 
 
 Recognition of Divorce Against Nonresi- 
 dent Not Personally Served. 
 
 In a number of jurisdictions the following 
 rule obtains : Where the statutes of a state 
 provide that a divorce may be granted in pro- 
 ceedings instituted by constructive service of 
 process, a divorce so granted in that state to 
 a plaintiff who has a bona fide domicil therein, 
 against a nonresident defendant, if valid un- 
 der the state's laws, is equally valid, so far 
 as the dissolution of the marriage relation is 
 concerned, in every other state, notwithstand- 
 ing the fact that the defendant was not served 
 with process personally and that he had no 
 actual knowledge of the proceedings. 
 
 Alatama. — Thompson v. State, 28 Ala. 12 ; 
 Thompson v. Thompson, 91 Ala. 591, 8 So. 
 Rep. 419. Compare Turner v. Turner, 44 Ala. 
 437. 
 
 OaUfornia. — Matter of Newman, 75 Cal. 
 213, 16 Pac. Rep. 887; Matter of James, 99 
 Cal. 374, 33 Pac. Rep. 1122. 
 
 Illinois. — Knowlton ■;;. Knowlton, 155 111. 
 158, 39 N. E. Rep. 595 ; Dunham v. Dunham, 
 162 111. 589, 44 N. E. Rep. 841. 
 
 Indiana. — Hilbish v. Hattle, 145 Ind. 59, 
 44 N. E. Rep. 20. 
 
 Iowa. — Wakefield v. Ives, 35 Iowa 238 ; 
 Van Orsdal v. Van Orsdal, 67 Iowa 35, 24 
 N. W. Rep. 579. 
 
 Kansas. — Chapman v. Chapman, 48 Kan. 
 636, 29 Pac. Rep. 1071; Rodgers v. Rodgers, 
 56 Kan. 483, 43 Pac. Rep. 779. See also Roe 
 V. Roe, 52 Kan. 724, 35 Pac. Rep. 808. 
 
 Kentucky. — Hawkins v. Ragsdale, 80 Ky. 
 353. 
 
 Louisiana. — Benton's Succession, 106 Iva. 
 494, 31 So. Rep. 123. Compare Smith v. 
 Smith, 43 La. Ann. 1140, 10 So. Rep. 248. 
 
 Maine. — ■ Harding v. Alden, 9 Me. 140. 
 
 Maryland. — Garner v. Garner, 56 Md. 127. 
 
 Minnesota. — Thurston v. 'Thurston, 58 
 Minn. 279, 59 N. W. Rep. 1017. 
 
 Missouri. — Gould v. Crow, 57 Mo. 200 ; 
 Anthony v. Rice, 110 Mo. 223, 19 S. W. Rep. 
 423. 
 
 Ohio. — Doerr v. Forsythe, 50 Ohio St. 726, 
 35 N. E. Rep. 1055. 
 
 Rhode Island. — Ditson v. Ditson, 4 R. I. 
 8". 
 
 Tennessee. — - Thorns v. Kims, 98 Tom. SO, 
 31 S. W. Rep. 983. 
 
 Wisconsin. — Shafer v. Bushnell, 24 Wis. 
 372. Compare Cook v. Cook, 56 Wis. 195, 14 
 N. W. Rep. 33, 443. 
 
 And this is so though the state in which 
 the divorce is granted is not the state in which 
 the marriage was solemnized. Thompson v. 
 Thompson, 91 Ala. 591, 8 So. Rep. 419 ; Mat- 
 ter of James, 99 Cal. 374, 33 Pac. Rep. 1122 ; 
 Knowlton v. Knowlton, 155 111. 158, 39 N. E. 
 Rep. 595 ; Van Orsdal v. Van Orsdal, 67 Iowa 
 35, 24 N. W. Rep. 579 ; Roe v. Roe, 52 Kan. 
 724, 35 Pac. Rep. 808; Harding v. Alden, 9 
 Me. 140; Gould v. Crow, 57 Mo. 200; Doerr 
 V. Forsythe, 50 Ohio St. 726, 35 N. E. Rep. 
 1055 ; Ditson v. Ditson, 4 R. I. 87 ; Thoms v. 
 King, 95 Tenn. 60, 31 S. W. Rep. 983. 
 
 This rule has been applied to a divorce ob- 
 tained by a husband who removed in good 
 faith from the state where the marriage was 
 solemnized to the state where the divorce was 
 granted, for the iona fide purpose of residing 
 there. Thompson v. 'Thompson, 91 Ala. 591, 
 8 So. Rep. 419; Van Orsdal v. Van Orsdal, 
 67 Iowa 35, 24 N. W. Rep. 579 ; Roe v. Roe, 
 52 Kan. 724, 35 Pac. Rep. 808; Gould v. 
 Crow, 57- Mo. 200; Doerr v. Forsythe, 50 
 Ohio St. 726, 35 N. E. Rep. 1055. Compare 
 Thurston v. Thurston, 58 Minn. 279, 59 N. 
 W. Rep. 1017. It has been applied also to a 
 divorce obtained by a wife who separated 
 from her husband for adequate cause and re- 
 moved in good faith from the •state where her 
 husband resided to the state where the divorce 
 was granted with the view of making the 
 latter state her permanent residence. Dun- 
 ham V. Dunham, 162 111. 589, 44 N. E. Rep. 
 841; Chapman v. Chapman, 48 Kan. 636, 29 
 Pac. Rep. 1071. Where a marriage took place 
 in New York, and the husband deserted his 
 wife, in Massachusetts, and she thereupon 
 took up her residence in Rhode Island, it was 
 held that a divorce granted her in that state 
 was valid in every other state of the Union. 
 Ditson V. Ditson, 4 R. I. 87. It must be ob- 
 served, however, that this rule was laid down 
 in the state where the divorce was granted. 
 
 Some of the cases recognizing the validity 
 of foreign divorces granted against nonresi- 
 dent defendants upon constructive service do 
 so upon the theory that a divorce proceeding 
 must be regarded to some extent as a pro- 
 ceeding in rem, the marriage status being the 
 res. Matter of Newman, 75 Cal. 213, 16 Pac. 
 Rep. 887; Dunham v. Dunham, 162 111. 589, 
 44 N. B. Rep. 841; Gould v. Crow, 57 Mo. 
 200; Thorns v. King, 95 Tenn. 60, 31 S. W. 
 Rep. 983. 
 
 In some cases it has been said that a for- 
 eign divorce granted against a nonresident 
 ujjon constructive service is entitled to extra- 
 territorial recognition on the ground that the 
 decree is a judgment entitled to the protection 
 of the full faith and credit clause of the Con- 
 stitution of the United States. Knowlton v. 
 Knowlton, 155 111. 1.58, 39 N. E. Rep. 595; 
 Dunham v. Dunham, 162 III. 589, 44 N. E. 
 Rep. 841; Wakefield v. Ives, 35 Iowa 238; 
 Harding v. Alden, 9 Me. 140 ; Gould v. Crow, 
 57 Mo. 200; Ditson v. Ditson, 4 R. I. 87. 
 On the other hand, the recognition of such 
 divorces has been placed upon the ground of 
 interstate comity. Dunham v. Dunham, 162 
 111. 589, 44 N. B. Rep. 841. And it is proba- 
 ble that in most cases the recognition has 
 been based upon that theory, though, Ss a 
 rule, the courts have not said so in express 
 terms. 
 
 The cases holding that a divorce granted 
 against a nonresident defendant upon con- 
 
HADDOCK V. HADDOCK. 
 
 29 
 
 aoi ». *'. 
 
 structiTe sti-Tise of pi-oe*ss cptimtM to dis- 
 solve the marriage i-elation of the partiss, not 
 only in the state where it is granted but in 
 every other state, are not in harmony as to 
 the extraterritorial effect of the divorce upon 
 the property rights of the parties. On one 
 hand, it has been held that while a divorce 
 rendered pursuant to constructive service de- 
 termines the status of the parties, it does not 
 by its own force affect the right to property 
 in other states. Hawkins v. Bagsdale, 80 Ky. 
 353 ; Thurston v. Thurston, 58 Minn. 279, 59 
 N. W. Rep. 1017. Thus a divorce procured 
 by a husband in one state does not cut off 
 his wife's dower right in property located in 
 the state ol her residence. Doerr v. Forsythe, 
 50 Ohio St. 726, 35 N. E. Rep. 1055. On the 
 other hand, it has been held that the divorce 
 not only dissolves the marriage, but cuts off 
 the wife's dower or the husband's curtesy, as 
 the case may tje, even as to lands located in 
 other states. Hilbish v. Hattle, 145 Ind. 59, 
 44 N. E. Rep. 20; Gould v. Crow, 57 Mo. 
 200; Thoms v. King, 95 Tenn. 60, 31 S. W. 
 Rep. 983. And where there was a statute 
 providing that a wife who procured a decree 
 for divorce on the ground of adultery was 
 entitled to dower, it was held that a wife who 
 had procured a divorce on that ground was 
 entitled to dower in lands within the state 
 owned by her divorced husband during cover- 
 ture, though the divorce was granted in a 
 foreign state. Harding v. Alden, 9 Me. 140. 
 
 On the question of the extraterritorial 
 effect of a divorce granted upon constructive 
 service on the right to alimony, the decisions 
 are more harmonious. The proceeding not 
 being in personam, such a divorce when ren- 
 dered against the wife does not preclude her 
 from recovering alimony in an appropriate 
 proceeding instituted by her in the state of 
 her residence. Rodgers v. Rodgers, 56 Kan. 
 483, 43 Pac. Rep. 779 ; Thurston v. Thurston, 
 58 Minn. 279, 59 N. W. Rep. 1017. On the 
 same principle, a decree based on constructive 
 service, which undertakes to award alimony, 
 has no extraterritorial effect as to the ali- 
 mony. Gould V. Crow, 57 Mo. 200; Eldred 
 V. Eldred, 62 Neb. 613, 87 N. W. Rep. 340. 
 Therefore, a wife who has obtained a decree 
 for divorce and alimony in a proceeding in a 
 foreign state, in which only constructive ser- 
 vice was had, may maintain an independent 
 action for alimony against her husband in 
 the state of his residence. Eldred v. Eldred, 
 62 Neb. 618, 87 N. W. Rep. 340. See also 
 Cox V. Cox, 19 Ohio St. 502. 
 
 The decree has no extraterritorial effect in 
 so far as it attempts to fix the custody of the 
 minor children of the marriage. Kline v. 
 Kline, 57 Iowa 386, 10 N. W. Rep. 825; 
 Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 
 Rep. 779. Nor has the decree any extraterri- 
 torial effect in so far as it attempts to pro- 
 hibit the defendant from marrying again. 
 Garner v. Garner, 56 Md. 127. 
 
 Limited Recognition of Divorce Against 
 NOKBESIDENT Not Personally Served. 
 In New Jersey it has been held that inter- 
 state comity requires that a decree of divorce 
 pronounced by a court of the state in which 
 the complainant is domiciled, and which has 
 jurisdiction of the subject-matter of the suit, 
 shall, in the absence of fraud, be given full 
 force and effect within the jurisdiction of a 
 sister 'state, notwithstanding the fact that the 
 defendant does not reside within the .luris- 
 diction of the court which pronounced the 
 decree and has not been served with process 
 therein; provided that a substituted service 
 
 has been aade im aecerdamee witk tke yravi- 
 siona of the statute of that state and that 
 actual notice of the pendency of the suit has 
 been given to the defendant and a reasonable 
 opportunity afforded to put in a defense 
 thereto ; and provided, further, that the ground 
 upon which the decree rests is one which the 
 public policy of the state in which it is sought 
 to be enforced recognizes as a sufficient cause 
 for divorce. Felt v. Pelt, 59 N. J. Eq. 606, 
 45 Atl. Rep. 105, 49 Atl. Rep. 1017. But a 
 foreign decree of divorce will not be recog- 
 nized in New Jersey, if the defendant was not 
 served with process or notice and had no 
 knowledge of the proceedings until after their 
 termination, whatever its effect may be in the 
 foreign state. Hence, such a decree is no 
 bar to a suit for divorce subsequently brought 
 by the defendant in New Jersey. Doughty v. 
 Doughty, 28 N. J. Eq. 581 ; Flower v. Flower, 
 42 N. J. Eq. 152, 7 Atl. Rep. 669. And see 
 Fairchild «. Fairchild, 53 N. J. Eq. 678, 34 
 Atl. Rep. 10. This is upon the principle that 
 an appeal to interstate comity to recognize a 
 foreign decree ought not to prevail when the 
 judgment has been rendered in violation of 
 the fundamental axiom of justice that a per- 
 son shall have an opportunity of being heard 
 before his rights are passed upon by a judicial 
 tribunal. Doughty v. Doughty, 28 N. J. Eq. 
 581. 
 
 In Louisiana it has been held that the 
 courts of that state will, by comity, hold 
 valid a divorce granted against a resident of 
 Louisiana by the courts of a foreign state 
 upon constructive service of process, provided 
 the policy of the divorce legislation of the two 
 states is similar and the notice given in the 
 foreign state is in substantial accord with the 
 Louisiana statute. Smith v. Smith, 43 La. 
 Ann. 1140, 10 So. Rep. 248. Compare Ben- 
 ton's Succession, 106 La. 494, 31 So. Rep. 123. 
 
 Repudiation of Divoecb Against Nonresi- 
 dent Not Personally Served. 
 
 In a number of cases the view has been 
 taken that a divorce rendered in one state 
 against a nonresident defendant upon con- 
 structive service, without personal service 
 within that state, or his appearance, has no 
 extraterritorial force. It is conceded that a 
 state may adjudge the status of its citizens 
 towards a nonresident, but it is held that the 
 state cannot fix a status upon such nonresi- 
 dent against his will and without his consent. 
 Therefore, it is held that a state has no power 
 to dissolve the matrimonial relations of a 
 person domiciled and actually residing in an- 
 other state who has not been served person- 
 ally with process and who has not entered an 
 appearance. Such a divorce, if granted, will 
 not be recognized as valid in the state of the 
 defendant's domicil. 
 
 Vniied States. — Hekking v. Pfaff, 82 Fed. 
 Rep. 403. 
 
 District of Columbia. — Barney v. De 
 Kraft, 6 D. C. 361. 
 
 Michigan. — Reed v. Reed, 52 Mich. 117, 
 17 N. W. Rep. 720: Van Inwagen v. Van 
 Inwagen. 86 Mich. 333, 49 N. W. Rep. 154. 
 
 We«! Yorh. — Bradshaw v. Heath, 13 Wend. 
 (N. Y.) 407; People v. Baker, 76 N. Y. 78; 
 Cross V. Cross, 108 N. Y. 628, 15 N. E. Rep. 
 333: Williams d. Williams, 130 N. Y. 193, 29 
 N. E. Rep. 98; Winston v. Winston, 165 N. 
 Y. 553, 59 N. E. Rep. 273 : People v. Karlsioe, 
 1 N. Y. App. Div. 571, 37 N. Y. Supp. 481; 
 McGown V. McGown, 19 N. Y. App. Div. 
 368 ; Bailie v. Bailie. 30 N. Y. App. Div. 461 ; 
 People V. Chase, 27 Hun (N. Y.) 256; Vischer 
 V. Vischer, 12 Barb. (N. Y.) 640; Matter of 
 
30 
 
 5 A. & E. ANN. CAS. 
 
 Degaramo, 86 Hun (N. Y.) 390, 33 N. Y. 
 Supp. 502; Phelps v. Baker, 60 Barb. (N. 
 Y.) 107; Davis v. Davis, (C. PI. Spec. T.) 
 2 Misc. (N. Y.) 549, 22 N. Y. Supp. 191; 
 Matter of House, 2 Oonnoly (N. Y.) 524, 14 
 N. Y. Supp. 275; Hamilton v. Hamilton, 
 (Supm. Ct. Spec. T.) 26 Misc. (N. Y.) 336, 
 56 N. Y. Supp. 122; Gebhard v. Gebhard, 
 (Supm. Ct. Spec. T.) 25 Misc. (N. Y.) 1, 54 
 N. Y. Supp. 406 ; Rundle v. Van Inwegan, 
 (Supm. Ot. Spec. T.) 9 Civ. Pro. (N. Y.) 
 328 ; House's Estate, ( Surrogate Ct. ) 20 Civ. 
 Pro. (N. Y.) 130, 14 N. Y. Supp. 275; People 
 V. McCraney, (Oyer & T. Ct.) 6 Park. Grim. 
 (N. Y.) 49; Moe v. Moe, 2 Thomp. & G. 
 (N. Y.) 647. 
 
 North Ca/roUna. — • Irby v. Wilson, 1 Dev. 
 & B. Eq. (21 N. Car.) 568. See also Harris 
 V. Harris, 115 N. Gar. 587, 20 S. E. Rep. 187. 
 Compare State v. Schlachter, Phil. L. (61 N. 
 Gar.) 520. 
 
 Wisconsin. — See Cook v. Cook, 56 Wis. 
 195, 14 N. W. Rep. 33, 443. Compare Shafer 
 V. Bushnell, 24 Wis. 372. 
 
 And this is true though the nonresident de- 
 fendant had actual notice by substituted ser- 
 vice of the bringing of the suit. Williams v. 
 Williams, 130 N. Y. 193, 29 N. E. Rep. 98; 
 Harris v. Harris, 115 N. Car. 587, 20 S. E. 
 Rep. 187. Compare Stanton v. Crosby, 9 
 Hun (N. Y.) 370. Even if the nonresident 
 defendant was served with a summons in the 
 state of his residence, the decree of divorce 
 will not be recognized by the courts of that 
 state. Williams v. Williams, 130 N. Y. 193, 
 29 N. E. Rep. 98; Matter of Kimball, 155 
 N. Y. 62, 49 N. E. Rep. 331 ; Matter of House, 
 2 Connoly (N. Y.) 524, 14 N. Y. Supp. 275; 
 McGown V. McGown, 19 N. Y. App. Div. 368, 
 46 N. Y. Supp. 285; Gebhard v. Gebhard, 
 (Supm. Ct. Spec. T.) 25 Misc. (N. Y.) 1, 
 54 N. Y. Supp. 406. The fact that the mar- 
 riage was solemnized in the state where the 
 divorce was granted is immaterial. People 
 V. Baker, 76 N. Y. 78. 
 
 A divorce granted against a nonresident de- 
 fendant upon constructive service of process 
 is no bar to a suit for a divorce or separation 
 subsequently brought by the defendant in the 
 state in which he was domiciled at the time 
 the foreign divorce was granted against him. 
 Van Inwagen v. Van Inwagen, 86 Mich. 333, 
 49 N. W. Rep. 154 ; Gross v. Cross, 108 N. Y. 
 628, 15 N. E. Rep. 333 ; Williams v. Williams, 
 130 N. Y. 193, 29 N. E. Rep. 98 ; McGown v. 
 McGown, 19 N. Y. App. Div. 368, 46 N. Y. 
 Supp. 285; Bailie v. Bailie, 30 N. Y. App. 
 Div. 461, 52 N. Y. Supp. 228; Vischer v. 
 Vischer; 12 Barb. (N'. Y.) 640; Hamilton v. 
 Hamilton, (Supm. Ct. Spec. T.) 26 Misc. (N. 
 Y.) 336, 56 N. Y. Supp. 122. See also Van 
 Storch V. Griffin, 71 Pa. St. 240. 
 
 A subsequent marriage entered into by the 
 plaintiff before the death of the defendant, 
 without the state where the divorce was 
 granted and within the state where the de- 
 fendant was domiciled at the time of the 
 divorce, will be regarded as invalid by the 
 courts of the latter state. Matter of Kimball, 
 155 N. Y. 62, 49 N. E. Rep. 331 ; Borden v. 
 Fitch, 15 Johns. (N. Y.) 121; Irby v. Wilson, 
 1 Dev. & B. Eq. (21 N. Car.) 568. And 
 when the spouse who obtained the divorce 
 remarries, intercourse under the second mar- 
 riage entitles the defendant in the first divorce 
 to a divorce on the ground of adultery. 
 Vischer v. Vischer, 12 Barb. (N. Y.) 640; 
 McGown V. McGown, 19 N. Y. App. Div. 368, 
 46 N. Y. Supp. 285 ; Bailie v. Bailie, 30 N. Y. 
 App. Div. 461, 52 N. Y. Supp. 228 ; Hamilton 
 V. Hamilton, (Supm. Ct. Spec. T.) 26 Misc. 
 
 (N. Y.) 336, 56 N. Y. Supp. 122. Where 
 the spouse who procures the divorce remarries 
 subsequently, the foreign decree is no defense 
 to an action brought to annul the second mar- 
 riage on the ground of the existence of the 
 first tnarriage. Davis v. Davis, (C. PI. Spec. 
 T.) 2 Misc. (N. Y.) 549, 22 N. Y. Supp. 191. 
 See also Moe v. Moe, 2 Thomp, & C. (N. Y.) 
 647. Where a divorce was granted on con- 
 structive service by an Ohio court against a 
 resident of Canada, dissolving a marriage 
 solemnized in New York, and thereafter the 
 defendant (the wife) married a third person 
 in New York, and resided with him in that 
 state, it was held that the second husband 
 was entitled to have his marriage annulled by 
 the New York courts on the ground that his 
 wife had another husband living, the Ohio 
 divorce being void for want of jurisdiction 
 over the person of the defendant. O'Dea v. 
 O'Dea, 101 N. Y. 23, 4 N. E. Rep. 110. If 
 the defendant in the foreign divorce proceed- 
 ings remarries in the state of his domicil be- 
 fore the death of the plaintiff, the foreign 
 deci'ee is no defense to a prosecution against 
 him for bigamy. People v. Baker, 76 N. Y. 78. 
 
 It has been said that no principle of comity 
 demands that a divorce granted against a non- 
 resident defendant upon constructive service 
 of process be recognized as valid by states 
 other than the one in which it is granted. 
 People V. Baker, 76 N. Y. 78. But in Hamil- 
 ton V. Hamilton, (Supm. Ct. Spec. T.) 26 
 Misc. (N. Y.) 336, 56 N. Y. Supp. 122, the 
 court, in commenting upon the attitude of the 
 New York courts toward foreign divorces 
 granted upon constructive service, said : " Un- 
 der the laws of this state we permit a hus- 
 band or wife, as the case may be, to obtain a 
 valid divorce by service of the summons by 
 publication upon the defendant residing in 
 another jurisdiction, yet we do not recognize 
 as valid a judgment of divorce obtained by a 
 husband or wife in a sister state, unless the 
 defendant has been personally served with 
 process in that jurisdiction, or has appeared 
 and submitted himself to the jurisdiction of 
 that court. The Constitution of the United 
 States requires that ' full faith and credit 
 shall be given in each state to the public acts, 
 records, and judicial proceedings of every other 
 state,' and it is said that the comity of states 
 and of nations, as well as public policy, re- 
 quire one jurisdiction to observe as valid a 
 marriage legally contracted in another juris- 
 diction. Seemingly we do neither." 
 
 The spouse procuring a decree in one state 
 cannot attack its validity in another. Thus, 
 where a wife procured a divorce in Massachu- 
 setts, and her husband was served with process 
 in New York but did not appear or submit 
 to the jurisdiction of the Massachusetts court, 
 it was held that she would not be heard, in a 
 subsequent action for dower, to impeach the 
 validity of the decree. Starbuck v. Starbuck, 
 173 N. Y. 503, 66 N. E. Rep. 193, reversing 
 62 N. Y. App. Div. 437, 71 N. Y. Supp. 104. 
 And it was so held where the wife obtained a 
 divorce in Illinois upon service of process by 
 publication. Matter of Swales, 60 N. Y. App. 
 Div. 599, 70 N. Y. Supp. 220. 
 
 Pennsylvania Rule. 
 In Pennsylvania the rule obtains that ex- 
 cept where the defendant has removed from 
 what was the common domicil, a spouse seek- 
 ing a divorce must sue in the forum of the 
 defendant, so that when a divorce is granted 
 against a nonresident, upon publication, it is 
 void — • at least extraterritorially — as the 
 court is without jurisdiction, and not even 
 
IN KB MOSER. 
 138 Mich. 302. 
 
 31 
 
 the service of process can give vitality to its 
 judgment. Colvln v. Reed, 55 Pa. St. 375; 
 Reel V. Elder, 62 Pa. St. 308 ; Piatt's Appeal, 
 80 Pa. St. 501; Fyock's Estate, 135 Pa. St. 
 522, 19 Atl. Rep. 1056; Com. v. Bolich, 18 
 Pa. Co. Ct. 401 ; Board of Chanties, etc., v. 
 Moore, 6 Pa. Co. Ct. 66; Philadelphia v. 
 Wetherbey, 15 Phila. (Pa.) 403, 39 Leg. Int. 
 (Pa.) 32; Heins's Estate, 22 Pa. Super. Ct. 
 31; Com. e. Maize, 23 W. N. C. (Pa.) 572. 
 See also Com. v. Steiger, 2 Pa. Dist. 493. 
 This rule has been applied to a divorce ob- 
 tained by a husband after he had gone to a 
 foreign state and left his wife in Pennsyl- 
 vania. Colvin V. Reed, 55 Pa. St. 375; Reel 
 V. Elder, 62 Pa. St. 308 ; Fyock's Estate, 135 
 Pa. St. 522, 19 Atl. Rep. 1056 ; Com. v. Bolich, 
 18 Pa. Co. Ct. 401; Heins's Estate, 22 Pa. 
 Super. Ct. 31; Com. v. Maize, 23 W. N. C. 
 (Pa.) 572. See also Com. v. Steiger, 2 Pa. 
 Dist. 493. 
 
 The husband's foreign divorce does not de- 
 stroy his wife's interest in his property. Col- 
 vin V. Reed, 55 Pa. St. 375 ; Reel v. Elder, 62 
 Pa. St. 308. The wife may -take out letters of 
 administration upon the estate of her hus- 
 band's estate, upon his decease, notwithstand- 
 ing the foreign divorce. Fyock's Estate, 135 
 Pa. St. 522, 19 Atl. Rep. 1056; Heins's 
 Estate, 22 Pa. Super. Ct. 31. A husband who 
 has obtained a divorce may nevertheless be 
 held liable to maintain his wife by an order 
 entered in a prosecution for desertion insti- 
 tuted in the state of her residence. Com. v. 
 Steiger, 2 Pa. Dist. 493 ; Board of Charities, 
 etc., V. Moore, 6 Pa. Co. Ct. 66; Com. v. 
 Bolich, 18 Pa. Co. Ct. 401. 
 
 Where a divorce was granted in New York, 
 upon constructive notice, against a wife domi- 
 ciled in Pennsylvania, the decree forbidding 
 her to remarry during the life of her husband, 
 and she ignored the decree and obtained a 
 divorce in Pennsylvania, and subsequently she 
 brought an action against a third person for 
 breach of promise of marriage, it was held 
 that the New York decree forbidding remar- 
 riage had no extraterritorial effect and there- 
 fore was no defense to the action. Van Storch 
 V. Griffin, 71 Pa. St. 240. 
 
 South Carolina Bttle. 
 In South Carolina, where divorces are not 
 allowed on any ground, it has been held that 
 a divorce granted in a foreign state, on pub- 
 lication of process, to a wife against her hus- 
 band, domiciled in South Carolina, will not 
 be recognized in South Carolina, and that 
 such recognition is not required by the full 
 faith and credit clause of the Constitution of 
 the United States, as the court of the foreign 
 state acquired no jurisdiction over the person 
 of the defendant. It has been held also that 
 in such case the foreign divorce does not bar 
 the wife's right to dower. McCreery v. Davis, 
 44 S. Car. 195, 22 S. E. Rep. 178. There does 
 not seem to be any South Carolina decision in 
 regard to whether the courts of that state will 
 recognize a foreign divorce granted pursuant 
 to personal service of process. 
 
 Scope and Effect of Reported Case. 
 
 In Atherton o. Atherton, 181 U. S. 155, 21 
 U. S. Sup. Ct. Rep. 544, the court held that 
 where the domicil of a husband is in a par- 
 ticular state, and that state is also the domi- 
 cil of matrimony, the courts of such state hav- 
 ing jurisdiction over the husband may, by 
 virtue of the duty of the wife to be at the 
 matrimonial domicil, disregard an unjustifi- 
 able absence therefrom, and treat the wife as 
 
 having her domicil in the state of the matri- 
 monial domicil for the purpose of the dis- 
 solution of the marriage, and as a result have 
 power to render a judgment dissolving the 
 marriage which will be binding upon both 
 parties and will be entitled to recognition in 
 all other states by virtue of the full faith and 
 credit clause. In the reported case the de- 
 cision in the Atherton case is approved, but 
 it is held that where the husband abandons 
 his wife in the matrimonial domicil, and the 
 wife remains in that domicil, while the hus- 
 band acquires a domicil in another state, 
 where he obtains a divorce upon constructive 
 service, without personal service or the wife's 
 appearance, the court does not acquire such 
 jurisdiction over the wife as entitles the de- 
 cree to obligatory recognition in the state of 
 the wife's domicil by virtue of the full faith 
 and credit clause of the Constitution of the 
 United States, though such state may have 
 power to recognize the decree as a matter of 
 comity and the state wherein it was rendered 
 may have the right to enforce it withfn the 
 limits of its jurisdiction. 
 
 In the Atherton case the defendant in the 
 original divorce proceeding was considered to 
 be constructively domiciled in the state 
 wherein the divorce was rendered, but in the 
 reported case it was considered that the de- 
 fendant was not so domiciled. 
 
 It would seem that these two cases, when 
 considered together, tend to establish the 
 proposition that when a divorce has been 
 granted by a state court in favor of a domi- 
 ciled citizen and against a nonresident defend- 
 ant, without appearance or personal service 
 of process, the decree, though it may be en- 
 forceable in the state where rendered and 
 may be recognized extraterritorially as a mat- 
 ter of comity, may be disregarded by the 
 courts of sister states without violation of the 
 full faith and credit provision of the Con- 
 stitution, unless the defendant, though a non- 
 resident, was constructively domiciled in the 
 state of the forum. 
 
 In Be AUGUSTUS 6. MOSEB.' 
 
 Michigan Supreme Court — Dec. 7, 190i. 
 138 Mich. 302. 
 
 Witnesses — Criminating Evidence — 
 Personal Privilege. — The provisions of the 
 constitution of Michigan and of the United 
 States that no witness can be compelled to 
 give testimony which may tend to criminate 
 himself or expose him to criminal prosecu- 
 tion is designed for the protection of the wit- 
 ness, and not for the protection of others, and 
 does not shield the president of a corporation 
 who refuses to produce before the grand jury. 
 in obedience to a subpoena duces tecum, cer- 
 tain books of the corporation, where it ap- 
 pears that during the time in which the liooks 
 sought and ordered to be produced were kept, 
 and the entries therein made, the president 
 had no connection whatever with, and no in- 
 terest in any form in, the corporation, or any 
 of its officers, and had no part in making the 
 entries or personal knowledge of them. The 
 
 ' For a discussion of statutes abridging the 
 constitutional privilege of witnesses, see note 
 to State V. Jack, 2 A. & E. Ann. Cas. 171. 
 
32 
 
 5 A. & E. ANN. CAS. 
 
 fact that the entries may tend to incriminate 
 other officers of the corporation is immaterial. 
 
 Witnesses — Criminating Evidence — 
 Wlio Determines. — A witness himself is 
 not the sole judge of whether an answer to a 
 question will tend to criminate himself. Un- 
 less it may so tend he must answer, and where 
 it is appaieut that it will not have that effect 
 his refusal to answer will subject him to pro- 
 ceedings tor contempt. 
 
 Search and Seizure — Books of Cor- 
 poration — Compulsory Production. ~ 
 One cannot be compelled to produce his owp 
 books, or the books of another which are 
 under his control as agent or otherwise, where 
 their production would tend to criminate him, 
 uoi; can his clerk, whose possession is bis 
 possession, be required to produce them ; but 
 when, as the agent of a corporation, he chooses 
 to make entries on the books of the corpora- 
 tion, and those books are in the actual and 
 legal possession and control of another offi- 
 cer of the corporation, or of the corporation 
 itself, such officer may be compelled to pro- 
 auce them, in a proper case, under a subpoena 
 duces itcuin, and this does not amount to un- 
 justifiable search and seizure as prohibited by 
 the Michigan constitution. 
 
 Certiorari to Circuit Court, Saginaw 
 county: Beach, Judge. 
 
 Contempt proceedings. Augustus G. Moser 
 convicted of contempt and brings certiorari. 
 
 [304] The petitioner was convicted of 
 contempt of court in refusing to produce be- 
 fore the grand jury, in obedience to a sub- 
 poena duces tecum, certain books of account 
 of the Bartlett Illuminating Company. The 
 case is before us for review on certiorari. 
 The defenses now urged are (1) that the en- 
 tries might tend to criminate the petitioner; 
 (2) that, as the avowed purpose in demand- 
 ing the books was to obtain evidence against 
 other officers of the Bartlett Illuminating 
 Company, compulsory process for their pro- 
 duction was in violation of section 26, article 
 VI., of the Constitution of Michigan, and of 
 the Fifth Amendment of the Constitution of 
 »the United States. 
 
 The material findings of the court are: 
 
 " 1. That on the 9th day of April, 1903, 
 and for some days prior, said grand jury were 
 engaged in investigating and inquiring into 
 certain alleged violations of the provisions of 
 section 11,312 of the Compiled Laws of 1897. 
 wliich said section makes it a felony for cer- 
 tain municipal officers to corruptly accept any 
 gift or gratuity, or any promise to inake any 
 gift or to do any act beneficial to such officer, 
 under an agreement or with an understanding 
 that his vote, opinion, or judgment shall be 
 given in any particular manner or upon a 
 particular side of any question, which is or 
 may be by law brought before him in his 
 official capacity. 
 
 "2. That said books and records referred 
 to in said subpoena contain material and 
 necessary evidence to aid said grand jury in 
 making an investigation, in determining 
 whether said section of the statute had been 
 violated. 
 
 " 3. That said respondent on said 9th day 
 
 of April, 1903, was the president of said com- 
 pany; was in possession and had full con- 
 trol of the books and records described in 
 said subpoena; that it was within his power 
 and ability, .if he so desired, to produce to 
 said grand jury the books and records called 
 for by said. subpoena. ' 
 
 " 4. That said respondent on said 9th day 
 of April appeared before said grand jury and 
 refused to produce the books and records 
 called for by said subpcena, and further re- 
 fused and declined to produce any one of said 
 books and records to said grand jury as com- 
 manded by said subpcena. 
 
 " 5. The respondent's refusal to produce 
 said books to said grand jury for the year 
 
 1900, and from Jan. 1 to [305] July 22, 
 
 1901, was not for the reason that the entries 
 contained in said books or records would 
 tend to criminate him, and he repeatedly 
 stated to said grand jury that the books and 
 records called for by said subpoena, from Jan. 
 1, 1900, to July 22, 1901, could in no way 
 tend to criminate him. 
 
 " 6. That said respondent's refusal to pro- 
 duce the books and records called for by said 
 subpcena for the year 1900, and from Jan. 
 1 to July 22, 1901, was a violation of section 
 1098 of the Compiled Laws of 1897. 
 
 " 7. That the production of the books of 
 the Bartlett Illuminating Company for the 
 year 1900 and the year 1901, containing the 
 accounts up to the 22d day of July of that 
 year, could in no way tend to criminate the 
 respondent, and that he should produce to 
 this court, before said grand jury, the books 
 and records called for in said subpoena, from 
 Jan. 1, 1900, to July 22, 1901. 
 
 " 8. That the respondeijt was in no way 
 connected with or interested in said munici- 
 pal contract; that in fact he was not in this 
 state at the time, nor interested or connected 
 with said company until nearly a year after 
 said matter was closed, and that no bill is 
 pending before said grand jury against him; 
 and that said jury is not considering any 
 matter in which he is personally interested." 
 
 Weadock d Purcell and James E. Davitt 
 for petitioner. 
 
 John F. O'Keefe for people. ' 
 
 Grant, J. (after stating the facts). — 
 Under the Constitutions of Michigan and the 
 United States, no witness can be compelled 
 to give testimony which might tend to crimi- 
 nate himself or expose him to a criminal pros- 
 ecution. The provision in eaeh Constitution 
 is the same. Many cases have arisen in the 
 courts, both of the states and of the United 
 States, under this provision. The only dif- 
 ficulty has been in determining whether the 
 facts of each case bring the party under the 
 protections afforded him by the Constitution. 
 
 The shield afforded is personal to the wit- 
 ness, designed for his own protection, and not 
 for the protection of others. [306] The wit- 
 ness himself is not the sole judge of whether 
 an answer to a question will tend to crimi- 
 nate himself. The due administration of the 
 
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