domiciled within its borders, whether temporarily absent or not, and that each state has authority to provide the means by which its own citizens may be brought before its courts, and that the courts of other states have no authority to disregard the means thus provided; and finally "that every judgment or decree obtained in a state against some of its citizens by virtue of a lawful, though constructive, service of process, should be obligatory upon such citizens in every other state whence it is taken."

With respect to the contention of the respondent that the order appealed from should be affirmed upon the ground that the parts of the judgment relating to alimony and the custody of the children were mere incidents of the suit for divorce, and that jurisdiction to grant the divorce includes jurisdiction of these incidents, and furthermore that the relation of children to parents is a status like that of marriage, and therefore, that an action to determine the custody of children is, like a suit for divorce, in the nature of a proceeding in rem. The dissenting judges further said: "We may say, however, that so far as the custody of the children is concerned, this second contention of respondent seems to be correct. The judgment merely determines generally the custody of the children, and whether it could be enforced in another state or country is not here involved. It is settled law that a decree of divorce operates upon the relation, the status, and that, therefore, such a decree, founded upon constructive service by publication is valid, even as against one resident and domiciled beyond the state: Flint River Steamboat Co. v. Foster, 48 Am. Dec. 273, 274, and note. 'A judgment for divorce is quasi, at least, in rem. Judgments in rem, it is well known, are not, as the name implies, confined to adjudications against things. They are rendered, in many instances, where the prior proceedings are entirely in personam, as in cases establishing or dissolving marriages': Freeman on Judgments, sec. 606. In Pennoyer v. Neff, 95 U. S. 714, it Is said: "The jurisdiction which every state possesses to determine the civil status and capacities of all its inhabitants, involves authorIty to prescribe the conditions on which proceedings affecting them may be commenced, and carried on within its territory.' Now, is not the relation between parent and child a 'civil status'? It is so assumed to be in Cooley's Constitutional Limitations, sixth edition, page 499. In Bishop on Marriage, Divorce, and Separation, section 1189, it is said that 'the relation of parent and child is a status ... like marriage.' And in Estate of Newman, 75 Cal. 213, 7 Am. St. Rep. 146, the court said: 'So far as the action of Maldonado v. Maldonado affected the status of the parties and the custody of the child, it was a proceeding in rem, and service by publication in such action is good': See, also, Wakefield v. Ives, 35 Iowa, 238; People v. Allen, 40 Hun, 611. In Brenot v. Brenot, 102 Cal. 294, it was held that, in an action for divorce, the custody of the children was an incident in the main relief sought-the divorce: See, also, Younger v. Younger, 106 Cal. 377. Upon these authorities, and upon principle, we think that, in an action brought for both divorce and the custody of the children, the latter is an incident of the former, and that the court has jurisdiction over the status founded on the relation of parent and child, as well as of the status founded on the relation of husband and wife, even as against a bona fide nonreslAM. ST. REP., VOL. LIII.-12

dent domiciled elsewhere. And, in such a case, the actual physical presence of the children is no more necessary for jurisdiction over the status in the one instance, than is the presence of the husband necessary in the other. It is not necessary to determine whether or not jurisdiction to decree alimony would follow as an incident to the divorce. It is doubtful if the judgment in this case really awards any alimony; but if it does, its validity in that respect has sufficient basis in the proposition first discussed in this opinion."

In another action between the same parties as in the principal case an order was made on May 8, 1894, appointing Francis E. Spencer guardian ad litem for the infant defendants. A decree was entered in this action May 15, 1894, formally adjudging that, as the defendants were citizens of the state, and domiciled therein, that the removal by the appellant of the children from the state was without right and in fraud and violation of the rights of the plaintiff, that the exclusive custody of the children be awarded to plaintiff, and that the defendant be required to forthwith bring them into the state, and to deliver them to the plaintiff. In September, 1894, the appellant moved for an order vacating and setting aside the decree on the ground that the court had no jurisdiction to make it. The facts relating to jurisdiction were the same as in the principal case, and the court determined that the motion to vacate the decree ought to have been granted, saying: "Jurisdiction to appoint a guardian for infants under the American system is entirely local. I do not doubt that the mere presence of infants within a Jurisdiction is sufficient to confer jurisdiction, although they may be residents of another state. But as such jurisdiction is always exercised for the good of the child, the courts would never allow the power to be used for the purposes of oppression, or to prevent an Infant temporarily within its jurisdiction from being taken away, when its best interests required it, to its more permanent residence. The jurisdiction is never used except when necessary for the good of the child. Counsel claim here, also, as in the other case, that domicile, and not actual residence, is the test of jurisdiction to appoint a guardian of the person of infants. The case apparently most relied upon is In re Willoughby, L. R. 30 Ch. Div. 324. But that case, if authority at all upon the subject, is the other way. Counsel stated in his argument that England was the domicile, at least by choice, of the infant's father. Nothing in the case warrants that assertion. The case does not show that either parent of the Infant was ever in England, or ever expected to be, or had a domicile there of any kind. On the contrary, it is expressly stated that the infant was domiciled in France, and the whole point of the opinions in the case is to show that domicile is not the test of jurisdiction, but that allegiance is. Judge Lindley in his opinion on appeal states the facts very curtly, as is the manner in the English courts: This is a curious case. The infant is English by nationality and French by domicile. Her father is dead, and her mother is by the French law under the Code Civil the guardian of the infant. The infant is not resident here, and has no property here.' The Infant was simply a grandchild of an Englishman, and therefore by the law of England declared to be an English subject, and the broad doctrine is announced that the court had the power to appoint @

guardian for an infant subject of Great Britain wherever the infant might be, and although domiciled in a foreign country. By the same rule, it would have jurisdiction to appoint a guardian for any infant in the United States whose grandfather was a natural born subject of Great Britain, though its parents were natural born citizens of the United States, and neither infant nor its parents had ever been domiciled in England. It is easy to see that the case proves nothing for respondent."

Jurisdiction Over Absent Citizens.

In the note to Alley v. Casparl, 6 Am. St. Rep. 179, 190, we consid ered the question of the jurisdiction of courts of one state or country over citizens of another, and included in the treatment of this topic the general subject of such jurisdiction over nonresidents and their property; and we do not here propose to again enter upon the same general field of inquiry. The term "nonresidents," in the sense in which we there employed it, was confined to persons who were neither within the country, nor did they owe personal obedience to its laws or allegiance to its government. It may be true, as determined by the court in the principal case, that there is no material difference, BO far as the jurisdiction of a state or country is concerned as to persons actually beyond its boundaries, whether they were ever within them or not, and that he who was born within, and has always been a citizen of, a state, the moment he enters another state or country becomes subject exclusively to the jurisdiction of the courts of the latter to the extent that no other court can render a valid judgment in personam against him unless supported by process served upon him in the state wherein the judgment was entered. The question is practically a new one in this country, and the decision in the principal case, made by an almost equally divided court, cannot be accepted as settling it.

We think that the judge writing the dissenting opinion in the principal case properly designated Pennoyer v. Neff, 95 U. S. 714, as a decision which had established what is "called the modern doctrine in regard to the jurisdiction of state courts over persons not personally served with process within the state," and we believe that prior to that decision a majority of all persons giving attention to the law understood that every state or country had power to provide the mode in which the process of its courts might be served, and further that each had authority, irrespective of the place of residence of the defendant, to assume jurisdiction after such service of process had been made as prescribed by its laws, and to render a judgment" which should be entitled to respect within the jurisdiction wherein It was rendered, though beyond that jurisdiction it might be deemed a nullity.

As to the Mode of Serving Process, the state in which the action is pending is still admitted to have control over that, and probably no case can be found in which a judgment has been declared void because the service was constructive as distinguished from actual, and we assume that the mode is immaterial, provided it be authorized by law, unless, perhaps, when it clearly appears to be adopted in bad faith, and to sanction judicial proceedings under such cir cumstances as will probably result in the defendant's being ignorant

of their pendency. The rule upon the subject was thus stated in Matter of Empire City Bank, 18 N. Y. 200, 215: "The provision for giving notice was relied upon by counsel for the stockholders as evidence that the proceeding was not due process of law. The notice of hearing before the referee is to be personal, or by service at the residence of the party, as to the stockholders who live in the county where the bank was located, and by advertisement in the state paper and in newspapers in the county as to all other stockholders. It may therefore happen that some of the persons who are made liable will not have received actual notice, and the question is, whether personal service of process, or actual notice to the party, is essential to constitute due process of law. We have not been referred to any adjudications holding that no man's right to property can be affected by a judicial proceeding unless he have personal notice. It may be admitted that a statute which should authorize any debt or damages to be adjudged against a person upon a purely ex parte proceeding, without a pretense of notice or any provision for defending, would be in violation of the constitution, and be void; but where the legislature has prescribed a kind of notice by which it is reasonably probable that the party proceeded against will be apprised of what is going on against him, and an oportunity is afforded him to defend, I am of opinion that the courts have not the power to pronounce the proceeding illegal." Each state may doubtless provide the mode in which the process of its courts may be served: Scott v. Coleman, 5 Litt. 349; 15 Am. Dec. 71; Flint River etc. Co. v. Foster, 5 Ga. 194; 48 Am. Dec. 248; Biesenthal v. Williams, 1 Duvall, 329; 85 Am. Dec. 629; Welch v. Sykes, 3 Gilm. 197; 44 Am. Dec. 689; De Meli v. De Meli, 120 N. Y. 485; 17 Am. St. Rep. 652; Hood v. Hood, 11 Allen, 196; 87 Am. Dec. 709; provided the parties against whom it issues are not deprived of an opportunity to be heard respecting the justice of the judgment sought. Therefore citizens and residents of a state may, If the laws so provide, be served with process by the publication thereof, or by leaving it at their usual place of abode, or in such other mode as the legislature deems proper under the circumstances of the case, if it appears probable that it will advise them of the proceedings against them, and afford them an opportunity to defend: Otis v. Dargan, 53 Ala. 178; Hurlburt v. Thomas, 55 Conn. 181; 3 Am. St. Rep. 43; Beard v. Beard, 21 Ind. 321; Burnam v. Commonwealth, 1 Duvall, 210; Henderson v. Staniford, 105 Mass. 504; 7 Am. Rep. 551; Rockwell v. Nearing, 35 N. Y. 302; Happy v. Mosher, 48 N. Y. 313; Thouvenin v. Rodrigues, 24 Tex. 468; Arndt v. Griggs, 134 U. S. 316, 320. It may be that as to persons actually within a state the legislature is not authorized to sanction any other than a personal service of process upon them in those cases in which there is no suggestion that they have concealed themselves or cannot be found, and in which the proceedings are of such a nature as to indicate no reason for resorting to constructive, rather than to personal, service. In one case, it has been held that a statute authorizing service by the publication of summons in proceedings to foreclose a mortgage, where no personal judgment was asked, did not provide for due process of the law as against residents with respect to whom there was no impediment to personal, and no reason for

resort to constructive, service: Bardwell v. Collins. 44 Minn. 97; 20 Am. St. Rep. 547.

As to Proceedings In Rem, Suits to Enforce Liens, or to Determine conflicting Claims of Title, or to Recover Possession of Property, whether real or personal, or to obtain judgment enforceable against property which has been seized under attachment or other mesne process, there is no doubt of the power of every state or country to provide methods of serving process which will affect all persons, whether residents or not: Note to Alley v. Caspari, 6 Am. St. Rep. 179-190; Arndt v. Griggs, 134 U. S. 316; Wehrman v. Conklin, 155 U. S. 314.

With Respect to Judgments in Personam the rule is unquestionably different. Each state has authority to provide for judicial tribunals, and to invest them with jurisdiction to determine the title to property within its borders, to enforce liens thereon, to conduct proceedings in rem, which may include proceedings establishing the status of particular persons, and to authorize such courts, after the service of process in some manner, to proceed in the exercise of their jurisdiction, though the persons affected thereby are not, and never bave been, residents of the state. But no state or country can rightfully assert authority over the citizens of another, except as to property situated within the jurisdiction of the former, and hence no court can compel a citizen of another state or country remaining therein to come before it, nor to submit to its decision a mere claim upon him for a money demand, and therefore it is not material what is the form, contents, or mode of service of the process issued against him, and by which it attempted to compel him to submit to its jurisdiction: Freeman on Judgments, sec. 564; Pennoyer v. Neff, 95 U. S. 714; Wilson v. St. Louis etc. Co., 108 Mo. 588; 32 Am. St. Rep. 624; Renier v. Hurlbut, 81 Wis. 24; 29 Am. St. Rep. 850.

Persons Temporarily in a State. -The question involved in the principal case was, What is the situation in respect to jurisdiction of a citizen of a state or country who has departed therefrom temporarily and for the express purpose of avoiding the action of its courts in any attempt they may make to redress the wrongs of his wife, who was also a citizen, and remained within the state? The question we shall consider is somewhat broader. It is, What courts have jurisdiction of a person temporarily absent from the state or country in which he retains his citizenship, and to which he expects to return? In the first place, it seems clear that the courts of every state or nation into which he may come thereby acquire jurisdiction over him to the extent that he may be brought before them by process served in conformity with its laws while he remains therein, whether the cause of action arose therein or not, and irrespective of the citizenship or residence of his adversary: Molyneux v. Seymour, 30 Ga. 440; 76 Am. Dec. 662; Fisher v. Fielding, 67 Conn. 91; 52 Am. St. Rep. 270; Alley v. Caspari, 80 Me. 234; 6 Am. St. Rep. 178; Roberts v. Knights, 7 Allen, 440; Hale v. Laurence, 21 N. J. L. 714; 47 Am. Dec. 190; Mitchell v. Bunch, 2 Paige, 606; 22 Am. Dec. 669; Carlisle v. United States, 16 Wall. 147; Sirdar Gurdavel Singh v. Rajah of Faridkote (1894), L. R. App. Cas. 670, 683; and the service of process may be made on the defendant while he remains upon the vessel of the