resident, or it may renounce jurisdiction over the status of the resident because it has not jurisdiction of the status of the non-resident.

The municipal law of each State, being primarily interested in and devoted to its own citizens, will usually enjoin upon its courts the first of these courses, as being most conducive to their protection. Accordingly we find provision in the municipal laws of every State directing how divorces may be obtained by citizens against non-resident defendants. In such cases, the laws of many States, looking upon the divorce purely in its aspect of a proceeding in rem, permit their courts to grant the divorce upon no further notice to the non-resident defendant than is afforded by an order of publication; while others (not losing sight altogether of the personal element in the divorce proceeding) resort to the juster method of requiring actual notice of the pendency of the suit to be mailed or otherwise safely transmitted to the absent defendant. The nature of this notice is regulated by the municipal law of each State, and if that law is complied with the divorce is valid within the limits of that State.

But when it is sought to give effect in other States to the divorce so obtained, it becomes a more difficult question to determine the consequence of the merely partial jurisdiction possessed by the divorce court over the res.

It would manifestly be impolitic, as well as unjust, to lay

1 Ditson v. Ditson, 4 R. I. 87; Kline v. Kline, 57 Ia. 386, 10 N. W. 825; Cox v. Cox, 19 Ohio St. 502, 2 Am. Rep. 415; Anthony v. Rice, 110 Mo. 233, 19 S. W. 423; Butler v. Washington, 45 La. Ann. 279, 12 So. 356.

2 Harding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec. 549; Loker v. Gerald, 157 Mass. 42; Smith v. Smith, 43 La. Ann. 1140, 10 So. 248; Champon v. Champon, 40 La. Ann. 28, 3 So. 397. In a proceeding in rem, in which the personal element does not enter, as in a proceeding against prop erty, the two forms of notice above given are regarded as equivalent. See Pennoyer v. Neff, 95 U. S. 714, 727. But in a proceeding quasi in rem, where the personal element enters to a certain extent, it cannot be properly said that an advertisement is equivalent to actual notice. See Doughty v. Doughty, 27 N. J. Eq. 315, 325.

› Harding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec. 549; Smith v Smith, 43 La. Ann. 1140, 10 So. 248.

down the general principle that a plaintiff shall never obtain a universally valid divorce in his own country, because the defendant happens to be a non-resident. To so hold would force the plaintiff to seek out the defendant and to ask for the divorce in a State chosen by the latter, perhaps for the very reason that its laws are hostile to the plaintiff's cause.

On the other hand, it must be remembered that a suit for a divorce is not a proceeding strictly in rem, but merely quasi in rem; and that while the res in the former proceeding is property whose situation and condition the owner, though non-resident, must be assumed to be familiar with, in proceedings quasi in rem the res is a personal status, an attack upon which in a distant State cannot be justly assumed to be known by the defendant without an actual notification of some sort.

Many theories have from time to time been advanced by the courts, some of which have been incidentally adverted to in prior sections of this work, and all of which have now been pretty generally discarded, except three leading ones. The first of these is entirely favorable to the resident plaintiff, sacrificing to the sovereignty of his domiciliary law all the rights of the defendant. The second is entirely favorable to the non-resident defendant, sacrificing the rights of the plaintiff to the sovereignty of the defendant's domiciliary law. It forces the plaintiff for the most part to sue for his divorce in the courts of the defendant's domicil, and requires him to subject himself to its laws. This theory is supported by the courts of New York, and may be designated "the New York doctrine." The third strikes a happy mean between the first and second, and while giving to the plaintiff all the rights conferred by his own law, permitting him to sue in the courts of his domicil, yet requires that the defendant should receive a more substantial notification of the existence of the suit than is afforded merely by a published advertisement in a newspaper of the plaintiff's domicil. This may be designated "the New Jersey doctrine," and is believed to be the soundest. The theories thus briefly outlined will now be elaborated more fully.

Ante, §§ 76, note 1, 78, notes 2, 3.

§ 92. First Theory — Jurisdiction over one Party confers Jurisdiction over the other also. According to the first theory, in order that the divorce court may have complete jurisdiction of the res, so that its decree will receive recognition everywhere as dissolving the relation of husband and wife, it is only essential that one of the parties should be domiciled there - it is immaterial which, though it will usually be the plaintiff. The courts of that party's domicil, having jurisdiction over his or her status, will draw to themselves, by reason of the mutuality of the marriage relation, jurisdiction of the status of the other party also, thus acquiring jurisdiction of the status of both. The case (under this theory) is practically identical with that where both parties are domiciled within the limits of the State of the divorce, and the proceeding, as in that case, is regarded as one strictly in rem, the personal element of the proceeding being disregarded altogether. Hence (under this theory) only such notice is required to be given the non-resident defendant as is required by the municipal law of the State of divorce in order to give its courts jurisdiction - frequently nothing more than an advertisement published in some obscure newspaper of that State.1

It will be observed that this doctrine upholds in full measure the sovereignty of the plaintiff's domicil with respect to his status, but in so doing it oftentimes permits grave (and very unnecessary) injustice to be done to the defendant, who fre

1 Ditson v. Ditson, 4 R. I. 87; Kline v. Kline, 57 Ia. 386, 10 N. W. 825, 826; Thurston v. Thurston, 58 Minn. 279, 59 N. W. 1017, 1018; Morey v. Morey, 27 Minn. 265, 6 N. W. 783; Thompson v. Thompson, 91 Ala. 591, 8 So. 419; Cox v. Cox, 19 Ohio St. 502, 2 Am. Rep. 415, 416; Doerr v. Forsythe, 50 Ohio St. 726, 35 N. E. 1055; Anthony v. Rice, 110 Mo. 233, 19 S. W. 423, 424; Hawkins v. Ragsdale, 80 Ky. 353, 44 Am. Rep. 483; Dunham v. Dunham, 162 Ill. 589, 35 L. R. A. 70, 77, 78; Hilbish v. Hattel, 145 Ind. 59, 33 L. R. A. 783; Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779. In other cases often cited to support this theory, it appears that there was an actual notification of the suit transmitted to the non-resident defendant. Such cases are in reality instances of the third theory, presently to be discussed. See Van Orsdal v. Van Orsdal, 67 Ia. 35, 24 N. W. 579; Harding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec. 549; Smith ». Smith, 43 La. Ann. 1140, 10 So. 248; Loker v. Gerald, 157 Mass. 42, 31 N. E. 709.

quently finds himself or herself divorced, without any previous knowledge whatever that proceedings for that purpose were pending. The laws and procedure of the plaintiff's domicil are devised to protect the plaintiff's interests, not those of the alien defendant. This constitutes the weakness of this theory. Its tendency is to violate that general principle of private international law that no man should be condemned unheard. It is a different case from that of a proceeding against property of the defendant. In that case a general publication is deemed sufficient because it is practically certain that the owner will be promptly notified of any blow aimed at his property. But his status is a more intangible thing, and more personal in its nature. 2

§ 93. Second Theory - Divorce a Proceeding in Personam. So impressed have the New York courts been by the personal element in the suit for divorce, and the dangers threatening the non-resident defendant under the first theory that they have adopted as extreme (and unjust) a view in the other direction. According to this second theory, the personal element above mentioned preponderates, and causes a proceeding whose purpose is to dissolve a status to be regarded in the light of a proceeding in personam rather than a proceeding in rem; and the same process is required to bring the defendant before the court as is required if the design were to fasten upon him or her a general pecuniary liability. The New York courts hold that no foreign divorce obtained in a State where the plaintiff alone is domiciled will be valid exterritorially, unless the defendant voluntarily appears or is personally served with process within the territorial jurisdiction of the divorce court.1

This theory gives undue weight to the personal element in

2 See Doughty v. Doughty, 27 N. J. Eq. 315, 325.

1 Matter of Kimball, 155 N. Y. 62; Williams v. Williams, 130 N. Y. 193; Cross v. Cross, 108 N.Y. 628; Jones v. Jones, 108 N. Y. 415; O'Dea v. O'Dea, 101 N. Y. 23; Collins v. Collins, 80 N. Y. 1; People v. Baker, 76 N. Y. 78, 32 Am. Rep. 274; Hoffman v. Hoffman, 46 N. Y. 30. The New York view has been adopted by a few other courts. Harris . Harris, 115 N. C. 587, 20 S. E. 187; Cook v. Cook, 56 Wis. 195, 43 Am. Rep. 706, 14 N. W. 33, 38. See Elder v. Reel, 62 Penn. St. 308, 1 Am. Rep. 414.

volved. It magnifies the rights of the defendant, and goes far to ensure that no injustice will be done that party; but it will frequently be at the expense of the plaintiff and the sovereignty of the plaintiff's domicil. It practically, in many cases, forces a plaintiff who desires a divorce, at the very least to seek out the defendant, and sue in the State selected by the latter, for the very reason perhaps that its laws are more hostile to the plaintiff than his or her own; and, since the municipal laws of most States require the plaintiff to be domiciled in the State where he seeks a divorce, this theory would often compel him to abandon his own State altogether, and take up his permanent residence in the domicil of the defendant, or else forego his right to a divorce entirely. It pays no heed to the sovereignty of the plaintiff's domicil and its control over his status, which is just as pronounced as that of the defendant's domicil over the status of the latter. These are serious drawbacks to this theory serious indeed that it is not surprising that most courts have rejected it as unsound.2

SO

§ 94. Third Theory Divorce neither in Rem nor in Personam, but Quasi in Rem-Requires Best Notification practicable to Non-Resident Defendant. The third theory, adopted by the courts of New Jersey, is the best in point of reason, principle, and justice to all parties, combining as it does the advantages of both the other theories, and minimizing the disadvantages of both. According to this theory, the personal element entering into a divorce suit is neither disregarded to the extent of making the divorce a proceeding in rem, nor so magnified as to make it a proceeding in personam. It is accorded its proper weight, and the divorce is regarded as a proceeding quasi in rem, that is, it is sufficiently a proceeding in rem to permit a court having jurisdiction of even part of the res to adjudicate upon it, without having to bring the person of the defendant within its jurisdiction, either by voluntary appearance or by service of process within the territorial limits of its authority; yet sufficiently in personam to require something more than a mere advertisement of the pendency of the suit, if more than that is practicable.

See Dunham v. Dunham, 162 Ill. 589, 35 L. R. A. 70, 77-78.