Opinion of the Court, per PECKHAM, J.

question. Though she succeeded at the trial, and obtained the decree upon the ground, that he had obtained a divorce upon the indispensable fact that he was a bona fide resident of that State, when in truth he was not, but then resided in this State, this judgment was set aside upon appeal, for the reason that the party was confined by statute to a motion for a new trial in a court of law, and must comply with the provisions of their statute on that subject.

It thus appears that this defendant obtained this judgment in Indiana by fraud. By fraud upon the laws of that State as well as of this. The statutes of that State require that a party in such case, in order to be entitled to this relief, should be "at the time a bona fide resident of the county in which the petition is filed." (Act of 1852, § 6.)

The obvious reason why he went to that State was, because he had condoned the offence, and in answer to a suit here, it would have been proved. It was equally an answer in Indiana; hence the necessity of obtaining the judgment without any notice to the wife.

It is impossible to sustain this Indiana judgment, without coming in conflict with every decision of our own courts touching this question. (Kerr v. Kerr, 41 N. Y., 272, and cases there cited.)

A contract of marriage, regarded in this State as a solemn obligation, is a mere farce if it can thus be dissolved.

The dissatisfied party need only take the cars for another State, and upon alighting there may at once institute proceedings for divorce. Residence for no particular time seems then to have been required in Indiana, only a "bona fide residence."

It is almost necessarily an ex parte proceeding, where the other party, as here, resides in New York. In such case the statute of Indiana requires notice of the petition to be published, once a week for three weeks "in some weekly paper of general circulation, printed and published in such county; or, if there be no such paper, then in the one printed and published in this State, nearest to the county seat of such county." (Act of 1852, § 11, Laws of Indiana.)

Opinion of the Court, per PECKHAM, J.

There is no probability that such a notice would reach the opposite party.

The State might as well have enacted, that a divorce might there be procured by a bona fide resident, without any notice whatever to a non-resident, upon proof of the required facts. Honest justice would be thus quite as well attained.

Is the record of this judgment conclusive upon the courts of this State?

It is the settled doctrine of this State, that such record is not conclusive as to the question of jurisdiction.

It is not conclusive even though it states facts, which give the court jurisdiction; but these alleged facts may be shown. to be untrue. (Mills v. Duryee, 2 Am. Lead. Cases, 725, note, and cases cited; Shumway v. Stillman, 6 Wend., 447; Starbuck v. Murray 5 Wend., 148; Noyes v. Butler, 6 Barb., 613; Kerr v. Kerr, supra.)

There are authorities in some States against this position, holding that statements in a record of a sister State are conclusive. In the United States Court, Mr. Justice CLIFFORD, in Christmas v Russell (5 Wall., 290), said that such judgments are open to inquiry as to the jurisdiction of the court and notice to the defendant."

In Cheever v. Wilson (9 Wall., 108, 123), Mr. Justice SWAYNE, after stating that the fact, that the petitioner did reside in the county (in Indiana) where the petition was filed, is expressly found by the decree, remarked, "whether this finding is conclusive or only prima facie sufficient, is a point on which the authorities are not in harmony. We do not deem it necessary to express any opinion upon the point."

In holding this record void in the courts of this State under the facts, it is not intended, in any degree, to impair the force of the federal Constitutional provision, "that full faith and credit shall be given in each State to the public. acts, records and judicial proceedings of every other State." That provision was never intended to embrace a case like this. The Constitution did not mean to confer a new power or jurisdiction, but simply to regulate the effect of the SICKELS.-VOL. I. 5.

Statement of case.

acknowledged jurisdiction over persons and things within the State. (Story's Com. on Con.; Mills v. Duryee, 2 Am. L. cases, 623, note.)

The necessary effect of sustaining this decree would be, to allow any other State substantially to make laws for this State; to regulate not only our domestic relations of husband and wife, but almost every other right.

A court has no more authority to assume jurisdiction over a marriage contract than over any other subject, without due service of process or the appearance of the party defendant.

Had the husband instituted his suit for divorce in this State, instead of Indiana, he could not have obtained a decree therefor upon the facts found in Indiana. Here he must state, under oath, that he has not voluntarily cohabited with the defendant since the discovery of the adultery. In that State it is made matter of defence, but the plaintiff is not required to make oath in regard to it.

For the reason, therefore, that the court in Indiana had no jurisdiction of the subject of the action, as the plaintiff in that action was, in fact, a resident of this State at the time he claimed to have resided there, and went to Indiana only to obtain this decree, and the defendant therein, was during all the time a resident of this State, was never served with process or appeared in that action, the decree therein cannot be enforced here, but must be held void. This decision may operate harshly upon innocent parties, but it cannot affect the rule of law.

Judgment affirmed, with costs.

All concur.

SAMUEL R. CHILDS, Appellant, v. EZEKIEL S. SMITH, Respondent.

Plaintiff sold and conveyed certain real estate to defendant; a part payment was agreed to be made in cash, when a certain contemplated corporation should be formed. - Held, that the organization of the corporation

Statement of case.

was not the event which fixed the fact of the indebtedness, but it only marked the time, when the payment of such indebtedness might be exacted, and that such corporation was formed, in the contemplation of the contract, when such acts were done among the associates as would form and set on foot, in practical existence, a body in which they would have, rights, and to which they would owe obligations, although no statutory organization had been perfected.

(Submitted May 30th, 1871; decided September 2d, 1871.)

APPEAL from the judgment of the late General Term of the Supreme Court in the fourth judicial district, reversing a judgment entered in Saratoga county upon report of referee in favor of plaintiff, and granting a new trial.

In April, 1867, plaintiff was the owner of 150 acres of land situated about two miles east of Saratoga Springs, upon which were two mortgages for about $10,000 in the aggregate. Fifty acres of the farm were thought valuable for the manufacture of brick and peat. On the 18th April, 1867, plaintiff conveyed the farm to defendant subject to the encumbrances, upon a parol agreement of sale for $20,000, by which defendant was to assume and pay the two mortgages of $10,000; $2,000 to be allowed for four acres reserved by plaintiff; $5,000 to be deducted for one-fourth interest in the fifty acres of peat land to be held by plaintiff, and $3,000 to be paid in cash, of which $1,000 was to be paid in a few days, and $2,000 when the brick and peat company should be organized. That company to be formed was, to operate upon said fifty acres with a capital of $150,000, of which $70,000 was to be retained as working capital; $20,000 was to belong to plaintiff; $40,000 to defendant, and $20,000 plaintiff was to take when the company was organized, and pay defendant therefor $5,000. The contract was changed and modified several times. as stated in the opinion. Defendant took possession of the farm on the delivery of the deed and leased it for farming purposes, reserving the fifty acres. He paid his $1,000 in a note and drafts. He immediately drafted articles for the organization. of a company, for the aforesaid purpose under the statute, which were executed and acknowledged by these parties; and

Opinion of the Court, per FOLGER, J.

by Wm. B. Laithe, who at once met as a corporation, elected officers, defendant being present, adopted by-laws proposed by defendant, all of which proceedings, were entered upon a book purporting to be a record of the corporation. Steps were taken to prepare the ground and procure a machine for commencing the manufacture. The articles of incorporation were delivered to Mr. Laithe, by direction of defendant, to be filed with the secretary of State; but they were not filed in that office, nor any duplicate, with the county clerk. Defendant neglected to pay the interest on the said mortgages. They were foreclosed in July, 1867. After the sale the incorporation was abandoned.

Upon these facts the referee decided defendant was liable for the $2,000.

W. A. Beach, for appellant, that for all purposes of corporate business the company was organized. (Springsteen v. Sampson, 32 N. Y., 703.) That corporate character of company could not be questioned by defendant. (The B. and A. R. R. Co. v. Cary, 26 N. Y., 75; Eaton v. Aspinwall, 19 N. Y., 119; Doyle v. Petroleum Co., 44 Barb., 239 ; Tarbell v. Paige, 24 Ill., 46; Moses v. Breling, 31 N. Y., 462.)

J. H. Shoudy, for the respondent, that the contemplated corporation never had an existence de jure or de facto. (M. E. Union Church v. Picket, 19 N. Y., 482; Eaton v. Aspinwall, 19 N. Y., 119; Bank of Toledo v. International Bank, 21 N. Y., 542; B. and A. R. R. Co. v. Cary, 26 N. Y., 75.) That defendant is not estopped from denying incorporation. (Welland Canal Co. v. Hathaway, 8 Wend., 480; Burt v. Farrar, 24 Barb., 518; Kingman v. Sparrow, 1 N. Y., 242; Frost v. Koon, 30 N. Y., 428; Shapley v. Abbott, 42 N. Y., 443.)

FOLGER, J. The contract between the parties, as it stood at the commencement of this action, was not formed at once, but was the result of several changes and modifications. In