tarily submitted to it; or, (4) that there was fraud in the proceedings and that no rule of the "comity of nations" could be based upon a fraud. Each of these cases will now be considered.

(1) The first of these views has assumed importance owing to a decision of the English House of Lords known as "Lolley's Case." This was an indictment for bigamy under the following circumstances: Lolley had been married in England to A., and a divorce having been procured by her in Scotland, on the ground of his adultery, permitting either party to marry again, he subsequently married B., also in England. Both parties were in Scotland when the divorce took place. The case is loosely reported; but it would appear that Lolley and his wife were all the time domiciled in England, though temporarily resident in Scotland, with a view to obtaining the divorce. The twelve judges of the Superior courts were consulted, and it is stated 8 that they were unanimously of the opinion that no sentence or act of any foreign country or state could dissolve an English marriage a vinculo matrimonii for grounds on which it was not liable to be so dissolved in England. In a subsequent case, LORD CHANCELLOR ELDON said that he understood the decision to be that as by the English law marriage was indissoluble, a marriage contracted in England could not be dissolved in any way except by act of the legislature.*

Lolley's Case has met with much criticism. It has not been specifically overruled, but its authority has been greatly weakened. It is held not to apply to a case where a domiciled Scotchman marries an English woman in England, and the marriage is dissolved in Scotland upon a ground for which, by English law, no divorce could be granted. This decision is wholly adverse to the interpretation which LORD ELDON put upon the case in the decision already cited. Lolley's Case is now confined in its effect to the case where the domicile is English "from the beginning to the end of the transaction." In that aspect it may properly be sustained, and it has in accordance with this view been recently held that, if a person having an English domicile goes to another country or State (in this case Kansas) to reside, without abandoning his domicile, and obtains a divorce for a cause not recognized in England, it will have

1 Rex v. Lolley, Russ. & Ry. Cr. Cases, 237; also cited in Tovey v. Lindsay, 1 Dow's Rep. 117, 124.

2 This is the explanation given by LORD BLACKBURN in Harvey v. Farnie, L. R. 8 App. Cas. 43, 59.

124.

8 Russ. & Ry. Cr. Cases, p. 239.
Tovey v. Lindsay, 1 Dow's Rep. 117,

5 Harvey v. Farnie, L. R. 6 P. D. 35; affirmed in the House of Lords, L. R. 8 App. Cas. 43.

no effect there.1 In the same spirit, it has been said by LORD BLACKBURN,2 that there is no case either in England or Scotland which decides that Lolley's Case is not right, as he understands its principle, which he declares to be that parties domiciled in England, going to Scotland temporarily, cannot obtain a divorce which will be valid in England, the Scotch court having in such a case no jurisdiction over the matter. It may accordingly be laid down as a prevailing and acknowledged rule that the courts of the State where the parties are domiciled in good faith have jurisdiction to divorce them according to the law of the domicile, however much that may differ from the law of the place of the marriage.3

(2) It is now generally conceded by jurists that the true place of jurisdiction over questions of divorce is the country where the parties are at the time domiciled, whether that be the place of marriage or not. (a) This proceeds upon the ground that while a marriage originates in contract, yet, as soon as it is entered into, there springs up a cluster of legal rules establishing the status of the parties, and which the parties cannot shake off by mutual consent as they can in an ordinary contract. So the capacity of the wife to act and contract is usually much impaired, if not entirely denied. These rules are no part of the marriage contract. They are mere rules of law, varying in different States and countries. Public convenience and a true policy requires that these should be prescribed by the law of the domicile, and that the whole subject of status should be relegated to that law.

1 Briggs v. Briggs, L. R. 5 P. D. 163. 2 Harvey v. Farnie, L. R. 8 App. Cas. 43, 59.

Cheever v. Wilson, 9 Wall. 108; Barber v. Root, 10 Mass. 260; Kinnier v. Kinnier, 45 N. Y. 535.

* The court of divorce in England holds that it has jurisdiction over divorces in case of foreign marriages where the husband resides in England, although not technically domiciled there. In one case the husband was a French consul who retained his French domicile though he resided in England. Niboyet v. Niboyet, L. R. 4 P. D. 1.

In a still more recent case the facts were these: An English lady consented to marry the son of a Neapolitan nobleman on condition of always having, after marriage, a residence in England, and residing there six months each year. The parties

accordingly took up a residence in London, but ultimately the husband, having committed adultery, abandoned his English residence, leaving the wife residing in London. It was held that the English divorce court had jurisdiction over the absent husband. It would seem, however, that as the husband was never domiciled in England, but only resident there, such a divorce, though valid for English purposes, would not be recognized as binding upon the husband in the country of domicile, according to the views prevailing in this country or even in England. Santo Teodoro v. Santo Teodoro, L. R. 5 P. D. 79. The rule giving effect elsewhere to a decree made in the tribunals of the domicile has been applied to a case of divorce for nullity (impotency), where the cause of divorce made the contract voidable. Turner v. Thompson, L. R. 13 P. D. 37.

(a) See Goulder v. Goulder [1892], P. 240.

The "domicile " here meant is not mere inhabitancy, but includes an intent to abide in the State. A residence simulated for the purpose of obtaining a divorce will not suffice. (a) This is a species of fraud upon the court, as it shows the alleged domicile to be unreal, and asserted for the purpose of evading the effect of the law appropriate to the condition of the parties. It has accordingly been decided that a decree of divorce under a statute of another State authorizing a divorce between husband and wife, neither of whom is domiciled there, is of no force or effect in the State where the parties are domiciled.1

(3) In considering the question of the absence of the defendant from the State when the divorce proceedings are instituted, two distinct instances may be referred to: one, where both parties are domiciled in the State where the divorce is sought, or forum, and the other where only one is domiciled there.

Where both parties are domiciled in the forum, and one is absent, the jurisdiction of the court continues over both. One, by withdrawing from the State for a temporary purpose (it may be to avoid a divorce), does not defeat the jurisdiction of the court.2 Accordingly, the court of the domicile may by appropriate means seek to notify the absent party of the pending proceedings, and if he does not appear, a divorce may be obtained which will be recognized in other States.

The more difficult case is where the parties have separate domiciles. Though the domicile of the wife usually follows that of the husband, yet for the purposes of divorce it may be distinct. The question then arises whether when the husband or wife commences in the court of his or her domicile a proceeding for divorce against the absent party, the decree or judgment in his or her favor will be recognized in the courts of the domicile of the absent party. The correct rule here seems to be that as the court acts only upon status, it cannot declare the status of the absent non-domiciled defendant. It may declare the status of its own citizen, but not of the foreign citizen. There is accordingly nothing to prevent the absent party from commencing another divorce proceeding in the court of his or her domicile.

1 Van Fossen v. State, 37 Ohio St. 317; People v. Dawell, 25 Mich. 247; State v. Armington, 25 Minn. 29; Litowitch v. Litowitch, 19 Kan. 451. The opinion of COOLEY, J. in People v. Dawell, supra, is particularly satisfactory. The Scotch law goes to a great length, holding that the mere presence of a party in a country ren

ders him amenable to the jurisdiction of a divorce court. Utterton v. Tewsh, Ferguson's R. 23.

2 Hunt v. Hunt, 72 N. Y. 217. In this case the wife was the absent party, but the principle appears to be equally applicable to an absent husband.

(a) Bonaparte v. Bonaparte [1892], P. 402.

Each may thus have a decree fixing status in the courts of their respective domiciles.1

The result is that a judgment of divorce where the defendant is absent and not domiciled is of no effect beyond the forum where it is rendered. There may be some difference of opinion as to the point whether a defendant without the State, who receives actual notice of the proceedings, would not be bound. This would, however, seem to be immaterial since the decisive fact remains that the foreign court has no power to make a decision affecting his or her status. It is important to distinguish carefully between two questions: one whether a court in a particular State has power to grant a divorce that will be valid within the limits of the State itself; the other, whether if it be valid within the State, it will be recognized elsewhere. The first question is one for the most part depending on the local statutes conferring jurisdiction, since the divorce jurisdiction belonged to the ecclesiastical courts in England, and there are no such courts here. The second question is not statutory, but depends upon the comity of states, or private international law.

Decisions in accordance with the view that the foreign court cannot in such cases dispose of the whole question of status, and that only the status of the person domiciled within its jurisdiction can be affected, have been made in England, New York, Pennsylvania, New Jersey, Maine, Massachusetts, Michigan, etc. Some of the cases are referred to in the note.2 (a) The defendant may, however, appear in the action, and submit to the jurisdiction of the court, in which case the judgment would not merely be locally binding, but would be regarded as

1 People v. Dawell, 25 Mich. 247, Cross v. Cross, 108 N. Y. 628, the court opinion of COOLEY, J. declined to hear further discussion, treating the matter as fully settled by prior decisions, p. 630. Shaw v. Atty-Gen'l L. R. 2 P. & D. 156. Mr. Dicey, in his excellent work on Domicil, refers this class of cases (where an absent defendant is served with notice of the proceedings by publication in the local papers) to a violation of the rules of natural justice, p. 239. While this view is undoubtedly correct, a still broader proposition may be maintained (as already suggested) that the foreign court has no power to declare the status of the absent non-domiciled defendant.

2 People v. Baker, 76 N. Y. 78; O'Dea v. O'Dea, 101 N. Y. 23; Cook v. Cook, 56 Wis. 195; People v. Dawell, 25 Mich. 247; Shannon v. Shannon, 4 Allen, 134; Lyon v. Lyon, 2 Gray, 367; Ralston v. Ralston, 13 Phila. 30; Love v. Love, 10 Phila. 453; Bishop v. Bishop, 30 Pa. St. 412. The injured party must seek redress in the forum of the defendant unless the defendant has removed from what was before the common domicile of both. Reel v. Elder, 62 Pa. St. 308; Coddington v. Coddington, 20 N. J. Eq. 263. In

(a) Williams v. Williams, 130 N. Y. 193. In the Matter of House, 40 N. Y. St. R. 286; Munson v. Munson, 60 Hun, 189. See, however, Thompson v. Thomp

valid in the courts of the defendant's domicile. This is particularly true if the absent defendant goes to the State where the case is pending. So if an attorney-at-law should assume to appear for an absent defendant without authority, the act would perhaps not be strictly void, but binding until repudiated; or, in other words, voidable.

A divorce, treated as utterly void in the court of the domicile, would result in such a manner that a person marrying according to the decree might be regarded in the courts of the domicile as having committed adultery, and be liable to an action for divorce. This view would not be taken if both parties had assented to the void proceeding, since there would be grounds for regarding the act of marriage as a connivance or procurement of the adultery, and so a bar to the divorce.4

(4) The last ground on which a foreign divorce may be assailed is fraud in the proceedings in which it was obtained. The case here intended to be considered is that of actual fraud upon the foreign court. In this case the foreign court itself would presumably treat the divorce as void, and it could not be expected to receive any greater respect abroad than it would have at home. 5

It has been frequently urged that there is a distinction between the recognition to be given judgments of courts of sister States and that due to those of the courts of foreign countries, owing to an Article of the United States Constitution, providing that "full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State." 6 It is, however, settled that this clause is not applicable where the courts of the sister State had no jurisdiction, or where the judgment was obtained by fraud. A judgment rendered by a court without jurisdiction is not in truth a judgment, but is a mere arbitrary prescription without force in another forum. It would not have force even in a court of the same State, and much less in a tribunal of another State. The cases on this subject are numerous, and in modern times quite harmonious.7 (a)

1 Cheever v. Wilson, 9 Wall. 108.

2 Jones v. Jones, 108 N. Y. 415.

3 Elliott v. Wohlfrom, 55 Cal. 384. But see contra, Kerr v. Kerr, 41 N. Y. 272.

Loud v. Loud, 129 Mass. 14; Palmer v. Palmer, 1 Sw. & T. 551.

(a) In some jurisdictions a judgment may be impeached collaterally for fraud. Kerr v. Kerr, 41 N. Y. 272; Vadala v. Lawes, L. R. 25 Q. B. D. 310. In others it is necessary to bring a direct proceeding to set the judgment aside. In the courts

5 Kerr v. Kerr, 41 N. Y. 272. See opinion of GROVER, J., p. 278.

6 Art. IV. § 1.

7 Borden v. Fitch, 15 Johns. 121; Kerr v. Kerr, 41 N. Y. 272; Thompson v. Whitman, 18 Wall. 457-461.

of the United States in an action at law upon a judgment, fraud, being an equitable defence, cannot properly be pleaded. Christmas v. Russell, 5 Wall. 290; Buller v. Lidell, 43 Fed. R. 116; Maxwell v. Stewart, 22 Wall. 77.