ration, mortgaged all its property, which was situated in several States, including Connecticut and New York, to the plaintiffs, in trust, to secure the payment of its bonds. Upon a failure to pay the interest, the plaintiffs brought a suit for a foreclosure in the Supreme Court in the city of New York. Judgment was rendered for the plaintiffs, pursuant to which a referee was appointed, who sold all the property, including the real estate in Connecticut, and executed a conveyance of the same to the purchaser. Suit was brought to foreclose the mortgage on the Connecticut property, according to the laws and practice in that State. The defendant, the Benedict & Burnham Manufacturing Company, an attaching creditor, appeared, and set up a special defence, alleging the foreclosure and proceedings in the State of New York. The defence was held insufficient, on the ground that the decree and proceedings had thereunder were nugatory as to the real estate situate in Connecticut. In my judgment, the doctrine of this case presents the better view, and it must be held that the decree of the Ohio court did not merge the lien of the mortgage on the real estate in Indiana.

It results from these views that the plea is insufficient, and it is so ordered, with leave to the defendant to answer within thirty days.

YOUNG v. DREYFUS.

COURT OF APPEAL OF PARIS. 1885.

[Reported 12 Clunet, 539.]

A COMPANY was formed at London in 1864 under the name of "The Saint-Nazaire Company, Limited." Its principal object was the purchase and resale of vast tracts of land situated in the neighborhood of the city of Saint-Nazaire, which they proposed to convert into docks, basins, quays, etc. The capital of the company, made up in accordance with the English law, was divided into shares of £20 each, £5 payable upon subscription, and the balance, as the company should need it, on call by the board of management.

After various vicissitudes, especially its consolidation with a company formed in France (the "Société de Commerce de France"), the English Saint-Nazaire Company was put into liquidation in England, and Mr. Young was appointed official liquidator by a decree of the Court of Chancery.

In 1877 Mr. Young, to meet the liabilities of the company, called upon the shareholders to complete the payment for their shares, amounting to £11 per share. Several shareholders not having satisfied the call, Mr. Young summoned them all before the Court of Chancery, and a decree of the Master of the Rools [Rolls?] condemned them to pay the amounts claimed.

To secure the execution of this decree against the French share

holders, Mr. Young brought an action against them, in his own name, before the Civil Tribunal of the Seine, to have the decree of the Court of Chancery of December 7, 1877, declared executory in France. By additional and subsidiary demands alleged to the lower court, Mr. Young claimed in his own name, in case the tribunal should not declare the English decree executory, that each of the defendants be adjudged to pay the amounts decreed against them in said decree, which represented the balances unpaid of the sums subscribed. On their part, the shareholders set up the lack of jurisdiction of the English court, and, as a result, the nullity of the decree; alleging also, as to the additional claims, the incompetence of the Civil Tribunal of the Seine, because "The Saint-Nazaire Company, Limited" was a commercial company.

On August 24, 1881, the Civil Tribunal of the Seine rejected the liquidator's claim. On his appeal, the Court of Paris affirmed the judgment in the following terms:

THE COURT. As to the jurisdiction of the English courts, Article 14 of the Civil Code authorizes a French plaintiff to cite a foreigner before the French tribunals, even upon obligations contracted in foreign countries. The object of this provision, containing as it does an exception to the rule actor forum sequitur rei, is to assure to a Frenchman the benefit of the national courts. It follows, a fortiori, that a defendant cannot, contrary to the rules of the common law, be withdrawn from his natural judges. Foreign courts are therefore, on principle, incompetent as concerns him. Nor is the case changed by the terms of Art. 59, § 5, of the Code of Civil Procedure, giving jurisdiction, in the case of partnerships, to the court of the place where the principal office is established. The provisions of this article govern the competence of French courts only with respect to persons justiciable in France; they are not to be extended further. Though the rules of competence in favor of French citizens are not rules of public order, and in consequence a Frenchman may waive the benefit of them, such waiver of a right cannot be presumed, and should be as certain and explicit as the right itself. In this case it is established neither by the by-laws of the English company nor by any of the documents produced. The mere fact of having subscribed to or bought shares in a foreign company cannot be considered as conferring jurisdiction.

SECTION III.

JURISDICTION QUASI IN REM.

PENNOYER v. NEFF.

SUPREME COURT OF THE UNITED STATES. 1878.

[Reported 95 United States, 714.]

FIELD, J.1 This is an action to recover the possession of a tract of land, of the alleged value of $15,000, situated in the State of Oregon. The plaintiff asserts title to the premises by a patent of the United States issued to him in 1866, under the act of Congress of September 27, 1850, usually known as the Donation Law of Oregon. The defendant claims to have acquired the premises under a sheriff's deed, made upɔn a sale of the property on execution issued upon a judgment recovered against the plaintiff in one of the circuit courts of the State. The case turns upon the validity of this judgment.

It appears from the record that the judgment was rendered in February, 1866, in favor of J. H. Mitchell, for less than $300, including costs, in an action brought by him upon a demand for services as an attorney; that, at the time the action was commenced and the judgment rendered, the defendant therein, the plaintiff here, was a non-resident of the State; that he was not personally served with process, and did not appear therein; and that the judgment was entered upon his default in not answering the complaint, upon a constructive service of summons by publication.

The Code of Oregon provides for such service when an action is brought against a non-resident and absent defendant who has property within the State. It also provides, where the action is for the recovery of money or damages, for the attachment of the property of the nonresident. And it also declares that no natural person is subject to the jurisdiction of a court of the State, "unless he appear in the court, or be found within the State, or be a resident thereof, or have property therein, and in the last case only to the extent of such property at the time the jurisdiction attached." Construing this latter provision to mean, that in an action for money or damages where a defendant does not appear in the court, and is not found within the State, and is not a resident thereof, but has property therein, the jurisdiction of the court extends only over such property, the declaration expresses a principle of general, if not universal, law. The authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is

1 Arguments of counsel and part of the dissenting opinion are omitted. — ED.

established. Any attempt to exercise authority beyond those limits would be deemed in every other forum, as has been said by this court, an illegitimate assumption of power, and be resisted as mere abuse. D'Arcy v. Ketchum et al., 11 How. 165. In the case against the plaintiff, the property here in controversy sold under the judgment rendered was not attached, nor in any way brought under the jurisdiction of the court. Its first connection with the case was caused by a levy of the execution. It was not, therefore, disposed of pursuant to any adjudication, but only in enforcement of a personal judgment, having no rela tion to the property, rendered against a non-resident without service of process upon him in the action, or his appearance therein. The court below did not consider that an attachment of the property was essential to its jurisdiction or to the validity of the sale, but held that the judgment was invalid from defects in the affidavit upon which the order of publication was obtained, and in the affidavit by which the publication was proved.

There is some difference of opinion among the members of this court as to the rulings upon these alleged defects. The majority are of opinion that inasmuch as the statute requires, for an order of publication, that certain facts shall appear by affidavit to the satisfaction of the court or judge, defects in such affidavit can only be taken advantage of on appeal, or by some other direct proceeding, and cannot be urged to impeach the judgment collaterally. The majority of the court are also of opinion that the provision of the statute requiring proof of the publication in a newspaper to be made by the "affidavit of the printer, or his foreman, or his principal clerk," is satisfied when the affidavit is made by the editor of the paper. The term "printer," in their judgment, is there used not to indicate the person who sets up the type he does not usually have a foreman or clerks; it is rather used as synonymous with publisher. The Supreme Court of New York so held in one case, - observing that, for the purpose of making the required proof, publishers were "within the spirit of the statute." Bunce v. Reed, 16 Barb. (N. Y.) 350. And, following this ruling, the Supreme Court of California held that an affidavit made by a "publisher and proprietor" was sufficient. Sharp v. Daugney, 33 Cal. 512. The term "editor," as used when the statute of New York was passed, from which the Oregon law is borrowed, usually included not only the person who wrote or selected the articles for publication, but the person who published the paper and put it into circulation. Webster, in an early edition of his Dictionary, gives as one of the definitions of an editor, a person who superintends the publication of a newspaper." It is principally since that time that the business of an editor has been separated from that of a publisher and printer, and has become an independent profession.

If, therefore, we were confined to the rulings of the court below upon the defects in the affidavits mentioned, we should be unable to uphold its decision. But it was also contended in that court, and is insisted

upon here, that the judgment in the State court against the plaintiff was void for want of personal service of process on him, or of his appearance in the action in which it was rendered, and that the premises in controversy could not be subjected to the payment of the demand of a resident creditor except by a proceeding in rem; that is, by a direct proceeding against the property for that purpose. If these positions are sound, the ruling of the Circuit Court as to the invalidity of that judgment must be sustained, notwithstanding our dissent from the reasons upon which it was made. And that they are sound would seem to follow from two well-established principles of public law respecting the jurisdiction of an independent State over persons and property. The several States of the Union are not, it is true, in every respect independent, many of the rights and powers which originally belonged to them being now vested in the government created by the Constitution. But, except as restrained and limited by that instrument, they possess and exercise the authority of independent States, and the principles of public law to which we have referred are applicable to them. One of these principles is, that every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory. As a consequence every State has the power to determine for itself the civil status and capacities of its inhabitants; to prescribe the subjects upon which they may contract, the forms and solemnities with which their contracts shall be executed, the rights and obligations arising from them, and the mode in which their validity shall be determined and their obligations enforced; and also to regulate the manner and conditions upon which property situated within such territory, both personal and real, may be acquired, enjoyed, and transferred. The other principle of public law referred to follows from the one mentioned; that is, that no State can exercise direct jurisdiction and authority over persons or property without its territory. Story, Confl. Laws, c. 2; Wheat. Int. Law, pt. 2, c. 2. The several States are of equal dignity and authority, and the independence of one implies the exclusion of power from all others. And so it is laid down by jurists as an elementary principle that the laws of one State have no operation outside of its territory except so far as is allowed by comity; and that no tribunal established by it can extend its process beyond that territory so as to subject either persons or property to its decisions. "Any exertion of authority of this sort beyond this limit," says Story, "is a mere nullity, and incapable of binding such persons or property in any other tribunals." Story, Confl. Laws, sect. 539.

But as contracts made in one State may be enforceable only in another State, and property may be held by non-residents, the exercise of the jurisdiction which every State is admitted to possess over persons and property within its own territory will often affect persons and property without it. To any influence exerted in this way by a State affecting persons resident or property situated elsewhere, no objection can be justly taken; whilst any direct exertion of authority upon them,